These Terms and Conditions shall apply to Orders Placed with IVF Cryo as of May 1, 2025, and thereafter, unless further amended.

IVF Cryo LLC, (“Company”), provides services under this and associated agreements subject to the following terms and conditions. For avoidance of doubt, Services shall mean the provision of a Shipping Unit(s) and nothing else.  Company only provides a Shipping Unit(s), without warranty to its suitability for any purpose.  Any logistic planning of shipments is NOT a Service provided by Company but is a complimentary benefit of using Company’s Services. Please read this agreement carefully. Not all sections and/or subsections apply to all parties.

All Orders are controlled by the Terms and Conditions. The Terms and Conditions, together with the Order, the Services Agreement, and any Schedules and Exhibits, with attachments, constitute the entire agreement of the parties.

1. SCOPE & TERM

The customer, (“Customer”), identified on an Order placed with the Company hereby agrees that: (a) the following terms and conditions, read in conjunction with, (b) the terms and conditions of the Shipping Provider identified in the Order, the (“Shipping Provider”), shall be the binding “Terms and Conditions.” Should the terms and conditions of the Shipping Provider conflict with these terms and conditions, these specific terms and conditions shall control. All Orders accepted by Company are subject to the Terms and Conditions. In addition, Customer agrees that the Terms and Conditions shall apply to all future or continuing orders until such time as any Terms and Conditions are amended. Any order placed with Company by Customer shall be referred to herein as the “Order.” A quote for services provided by Company to an individual (non-corporate) client or a business (corporate client) that does not have an executed agreement in place and subsequently accepted, either verbally, in writing, or electronically represents an Order. All terms used, but not identified herein, shall have the respective meaning set forth in the Order(s). Company accepts all Orders conditional upon the Terms & Conditions governing all transactions. All other terms and conditions are expressly rejected.

2. CONTROLLING DOCUMENT

The Terms and Conditions, together with the Order, Services Agreement, and any Schedules and Exhibits, with attachments, constitute the entire agreement of the parties.  Any agreement, writing, or communication that is in any way inconsistent or conflicts with the Terms and Conditions, shall not be binding on Company unless expressly acknowledged and agreed to in writing by Company.

3 PAYMENT OBLIGATIONS

If Services are provided under a Services Agreement, the Payment Obligation for the Order and respective payment terms shall be controlled by that Services Agreement. Corporate client’s with Payment Obligations controlled by a Services Agreement shall have a default net thirty (30) days to present payment on any Invoice. For each Service specified in an Order rather than a Services Agreement, Customer shall pay to Company the applicable fees set forth in the Order (the “Base

Fees”), and any additional fees that may arise pertaining to, and subsequent to the placing of the Order, such as, but not limited to, specialty courier charges (together with Base Fees, the “Payment Obligations”). Customer is also responsible for all transportation fees, including but not limited to fuel fees and taxes. Company shall invoice Customer and Customer shall pay each Invoice within fifteen (15) days after the date of the applicable invoice or prior to retrieval of the Shipping Unit(s) from Company’s location, whichever is earliest, unless otherwise agreed upon in a separate writing by Company.  

If Customer is paying for an Order by credit card a processing fee of three and a half percent (3.5%) will be added to each Order to cover third-party processing fees. Customer’s initial authorization to pay for Services shall also apply and authorize payment for any subsequent Payment Obligation arising from fulfillment of an Order. For each Order, Customer shall be responsible for all fees and expenses of the delivery and pick-up of Shipping Unit(s).  

In order to initiate shipment, Customer agrees to a (1) time non-refundable deposit of $100.00 USD. Customer agrees the remaining charges for the shipment order will be charged when the Company processes the Order for Shipment (typically one (1) day prior to pick-up from Company facility).  Customer may, without fee or penalty (excluding the one-time order initiation deposit of $100.00 USD), cancel any Order up to processing by Company (typically one (1) day prior to pick-up from Company facility).  Should Customer cancel any order after processing, but prior to shipping,

Customer agrees that they shall incur a late cancellation fee of two hundred and fifty dollars ($250.00 USD). Customer may not cancel an Order after shipment has occurred from the IVF CRYO facility. Should Customer, for any reason and at any time, cancel payment on an Order, Customer agrees that they shall immediately be liable for damages amounting to any fees incurred by Company, attorney’s fees to file suit to recover said fees, and a payment recovery fee of one thousand dollars ($1,000.00 USD).  Customer further agrees that Company may immediately seek legal redress for canceled payments and that Customer is responsible for all fees and penalties, regardless of the reason for cancellation.  

CUSTOMER’S PAYMENT OBLIGATIONS SHALL BE ABSOLUTE AND UNCONDITIONAL AND ARE NOT SUBJECT TO ANY ABATEMENT, SET-OFF, DEFENSE, OR COUNTER- CLAIM AND MAY NOT BE CANCELLED FOR ANY REASON WHATSOEVER.

4. DELIVERY AND ACCEPTANCE

Company reserves the right, to determine the date an Order is processed for shipment and the date to release Shipping Unit(s) to the Shipping Provider, Shipping Facility, Receiving Facility, and other 3^rd party facilities and businesses. Customer shall have the right to cancel an Order under the terms outlined in section “3. Payment Obligations” above.   

Unless Customer designates the Shipping Provider and method of transportation to Company on the Order, Company shall designate the Shipping Provider(s), method of transportation, and date Shipping Unit(s) is released to the Shipping Provider(s). Company shall make Shipping Unit(s) available for pick-up by the Shipping Provider as of the Order’s scheduled commencement of Service, at the address indicated on the Order. Sections 5, 6, 7, 8, and 10 are not applicable if Company designates the Shipping Provider(s) under this Section 4.

5. STANDARD CYCLE AND CYCLE FEES FOR SERVICES USING SHIPPING UNITS

The “Standard Cycle” for Service using a Shipping Unit is 10 days. Customer agrees to pay a lease fee for each Standard Cycle (the “Cycle Fee”) that the Order or Service Agreement requires the use of the Shipping Unit. The initial Cycle Fee is due and the initial cycle begins the day the Shipping Unit is shipped from Company’s facility. An additional Cycle Fee shall apply if the Shipper Unit is not returned to the Company’s facility from which it shipped within ten (10) days.

Customer bears the cost of all transportation freight to and from the originating Company facility. Prior to commencing Service, Customer may elect to increase their Standard Cycle in 5-day increments (a “Revised Standard Cycle”), with the fee revised such that each additional 5 days will be billed an additional fifty percent (50%) of the Cycle Fee (the “Revised Cycle Fee”). For any Shipping Unit that is not returned within the applicable time frame, Customer shall be charged an additional Cycle Fee or Revised Cycle Fee, whichever is applicable, upon the first unscheduled day. Company will charge Customer up to three such additional Cycle Fees for Customer’s failure to return the Shipping Unit. If the Shipping Unit is still not returned by the end of the third such unplanned additional cycle, Customer shall be charged the full replacement cost for the non-returned Shipping Unit (“Lost Shipping Fee”). If Customer later locates the lost Shipping Unit and has paid all applicable Cycle Fees and the Lost Shipping Fee within fifteen (15) days of receiving the Invoice, then Customer shall be eligible to receive a credit for up to fifty percent (50%) of the Lost Shipping Fee. Fifty percent (50%) credit is subject to the Shipping Unit being returned to Company, re-validated, tested, and placed back into service without damage.  This determination shall be at the sole discretion of Company.

6. RIGHTS AND INSPECTION OF SHIPPING UNITS

All Shipping Unit(s) are provided on a “for-hire” basis. Nothing contained in the Terms and Conditions may be construed as conveying to Customer and their assigns including Shipping Provider(s), any right, title, or interest in or to Shipping Unit(s). The Shipping Unit(s) shall at all times be the sole and exclusive property of Company, and Customer and their assigns including Shipping Provider(s), shall have no rights or property interest in it, other than the right to use it in a reasonable manner consistent with the intended purpose and in accordance with instructions, if any, received from Company.  

Customer recognizes and acknowledges that Customer and their assigns, including Shipping Provider(s), have the duty to maintain possession of Shipping Unit(s) conditional upon their compliance with the Terms and Conditions. Customer shall not assign, encumber, lien, sublease, or otherwise convey any Shipping Unit(s). Customer and their assigns, including Shipping Provider(s), shall indemnify Company from any and all losses, liabilities, damages, or expenses (including reasonable attorneys’ fees and court costs) resulting from any actual or purported assignment, sublease, pledge, encumbrance, lien, or conveyance.  

Customer agrees not to remove or alter any identification on Shipping Unit(s). All Shipping Unit(s) will be returned to Company in the same condition as they were delivered except for reasonable wear and tear. Upon the request of Company, Customer shall execute and deliver financing statements or other similar documents, and take such other actions, to permit Company to perfect a security interest in, or to evidence Company’s ownership of, Shipping Unit(s).

7. RETURN OF SHIPPING UNIT

On or before the expiration of the agreed upon Cycle, Customer shall return Shipping Unit(s) to the address specified in the applicable Order or Services Agreement, free and clear of any claims, liens, or encumbrances in a serviceable, emptied, and clean condition, without damage, except for reasonable wear and tear. Customer’s obligation to return Shipping Unit(s) is not diminished by the fact that Customer may deliver Shipping Unit(s) to, and rely upon, a third-party shipping service, including but not limited to FedEx and UPS. Payment Obligations may include additional fees and expenses in the event of (i) delay in the return of all Shipping Unit(s) beyond the applicable agreed upon Cycle, (ii) changes made to any shipping address, and/or (iii) changes to the time of delivery of Shipping Unit(s).  Company is not responsible for, nor responsible for notifying Customer of, any additional fees or expenses due to delay and/or changes in shipping details as described herein

8. MAINTENANCE AND USE OF SHIPPING UNIT

Customer shall:  

(a) Use Shipping Unit(s) in a careful manner, in accordance with all applicable product protocols, guidelines, and/or use restrictions established from time to time by Company and Shipping Provider; (b) NOT use Shipping Unit(s) or allow Shipping Unit(s) to be used for any unlawful purpose; (c) NOT modify or alter Shipping Unit(s) in any manner whatsoever; (d) NOT reverse engineer, disassemble, or determine, or attempt to determine, the composition, production, or characteristics of Shipping Unit(s) (or any component thereof); (e) use every reasonable precaution to prevent loss or damage to Shipping Unit(s) and to prevent injury to persons and property; and (f) comply with all applicable laws, ordinances, and regulations (including, without limitation, all customs, import, and export laws and regulations).  

If during delivery, a Shipping Unit experiences a spill or other such contamination, Customer shall promptly provide written notice to Company. Company will then provide Customer with commercially reasonable instructions as to how to address the spill or other such contamination. Customer shall fully cooperate with Company and any insurance companies in accordance with the Terms and Conditions in the investigation and defense of any claims and/or lawsuits arising from the use or operation of Shipping Unit(s). Customer shall indemnify Company from any damages arising from the misuse or abuse of the Shipping Unit(s). Customer shall only use Shipping Unit(s) for transportation of Specimen(s) in compliance with all such applicable laws, ordinances, or regulations, both State and Federal.  

Customer shall cause any third party permitted to use the Shipping Unit(s) and identified in an Order or Services Agreement, to be bound by the Terms and Conditions. Customer shall be liable for any third party’s compliance with (and any breach of) the Terms and Conditions. Customer or its designee shall be solely liable for making any and all filings and for providing any and all information relating to the contents of Shipping Unit(s) (including without limitation, any Electronic Export Information), and for the accuracy and completeness thereof. Customer is responsible for contacting the local office of Customer’s selected shipping carrier to ascertain if any prior arrangements are required for transportation of a Specimen(s).  

Customer hereby grants to Company a nonexclusive, worldwide, royalty-free license (with right to grant sublease) for all purposes under any and all intellectual property rights related to any discovery, intervention, or other technology directly or indirectly derived by Customer from use of the Service.

9. IMPORT/EXPORT TRADE COMPLIANCE

Company is headquartered in the U.S. and will not conduct business that violates U.S. export controls nor export controls in any other countries in which Company operates, provided they do not conflict with U.S. laws. Customer is responsible for, and warrants their compliance with, all applicable laws, rules, and regulations, including, but not limited to, custom laws, import and export laws, and government regulations of any country to, from, through, or over which its product/shipment may be carried.

Customer specifically warrants that Customer will not send any Specimen(s) if Customer or any of the parties involved in the product/shipment are listed on any of the export controls or sanctions lists published and maintained by the U.S. Department of Treasury; the U.S. Department of State, Directorate of Defense Trade Controls; the United Nations Sanctions Committees; the European Union Council; the UK Anti-bribery Act; and any other relevant authority. Customer agrees to furnish such documents as are necessary to comply with import and export laws, rules, and regulations. Customer understands that civil and criminal penalties may be imposed for making incorrect, false, or fraudulent statements, or for the violation of any laws or regulations on importation or exportation. Customer is solely responsible for determining any import or export license requirements and for obtaining any export or import license requirements and for obtaining any export or import license or other official authorization. Company assumes no liability to Customer or any other person for any loss or expense including, but not limited to, fines and penalties if Customer fails to comply with any import or export laws, rules, or regulations.

10. LOSS OR DAMAGE TO SHIPPING UNITS

Customer shall be financially responsible for, and Customer’s credit card may be charged for or Customer may be invoiced for: (i) any damage of Shipping Unit(s) determined at the sole discretion of the Company and (ii) the loss of Shipping Unit(s) from the time it is picked up from Company’s facility until it is returned and accepted by Company back at its facility. Customers is responsible for, and shall bear all risk of loss, damage, theft, destruction, attachment, or seizure, of/to Shipping Unit(s) and/or Specimen(s) placed in Shipping Unit(s) by Customer or someone else on Customer’s behalf, even if caused by someone else or if the cause is unknown (any such event, a “Casualty”). Customer is responsible for reasonable wear and tear or Shipping Unit(s) only, during the applicable cycles as described above. No Casualty shall impair the obligations of the Customer to pay the Payment Obligations for any and all Orders. Immediately upon the Customer becoming aware of a Casualty, Customer shall provide Company with written notice detailing such Casualty. At Company’s sole option and upon notice to the Customer, Customer shall promptly (a) reimburse Company for the reasonable cost of repairing the affected Shipping Unit(s) (but not exceeding the replacement value established from time-to-time by Company (“Replacement Value”)), or (b) pay Company the Replacement Value in the case of a lost Shipper Unit(s) or a Shipper Unit(s) for which the cost of the repair would exceed the Replacement Value.

11. INDEMNIFICATION

Customer shall indemnify Company for all injuries, losses and liabilities NOT resulting from Company’s gross negligence.  

Customer shall indemnify, defend, and hold harmless Company and its affiliates, and each of their members, shareholders, directors, officers, employees, agents, representatives, contractors, vendors, healthcare providers, successors, and assigns from and against any and all injuries, claims, losses, damages, liabilities, demands, offsets, or causes of action (of any type or nature whatsoever) and expenses, including attorneys’ and experts’ fees, resulting from, related to, or arising out of (i) any third party action, proceeding, or dispute arising out of this Agreement, (ii) the possession or use of Shipping Unit(s) by or on behalf of the Customer or it designee (without regard to cause or jurisdiction thereof), (iii) the breach of any representation, warranty, or covenant under the Terms and Conditions, or any inaccuracy of information supplied by Customer on an Order, and/or (iv) any failure to make any filings or to provide any information, that are true, complete, and accurate in all respects, related to the contents of Shipping Unit(s). The indemnity obligation shall survive Order(s) and all services provided by Company related to Order(s) and under this Agreement.

Customer is responsible for any Specimen(s) placed in Shipping Unit(s) by Customer or someone else, even if caused by someone else or if the cause is unknown. Any and all Specimen(s) placed in Shipping Unit(s) by Customer or someone else after Shipping Unit(s) leaves Company’s facility is (are) the responsibility of the Customer, and Customer is solely responsible for any and all claims made regarding the item(s) placed in the Shipping Unit(s) by Customer or someone else.

For the avoidance of doubt, Customer’s designated authorized recipient(s), Shipping Provider(s) hired by Customer, or any other person who uses the Services listed in and/or provided under this Agreement shall be considered a third party pursuant to this Section (Indemnification). Company shall promptly notify Customer in writing of any third-party action and Customer agrees to immediately assume responsibility for such matter including the payment of all expenses and liabilities, including attorneys’ and experts’ fees in connection therewith; provided, however, that Company’s prior written consent shall be required for choice of legal representation and settlement of any such action, which consent shall not be unreasonably withheld.

12. NO LIABILITY FOR DELAY

12A. NO GUARANTEED DELIVERY TIME; TIME NOT OF THE ESSENCE.

THE COMPANY DOES NOT GUARANTEE DELIVERY BY ANY PARTICULAR DATE OR TIME. TIME IS NOT OF THE ESSENCE WITH RESPECT TO ANY SHIPMENT. ANY PICKUP, TRANSIT, OR DELIVERY ESTIMATES ARE TARGETS ONLY AND SUBJECT TO CHANGE WITHOUT NOTICE.

12B. CARRIER-ONLY DELAY CLAIMS; COMPANY’S SOLE REMEDY.

CUSTOMER AGREES THAT ANY CLAIMS ARISING OUT OF OR RELATING TO DELAY BY A

SHIPPING PROVIDER (INCLUDING LATE PICKUP, MISSED CONNECTIONS, WEATHER, MECHANICAL ISSUES, CUSTOMS INSPECTIONS, LABOR ACTIONS, OR OTHER CARRIER EVENTS) SHALL NOT BE PURSUED AGAINST THE APPLICABLE SHIPPING PROVIDER, NOR AGAINST THE COMPANY. AS BETWEEN CUSTOMER AND THE COMPANY, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DELAY SHALL BE, AT THE COMPANY’S OPTION, A

WAIVER OR EXTENSION OF ANY APPLICABLE CYCLE FEES (IF ANY), AND IN NO EVENT MONETARY DAMAGES. FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS SECTION EXPANDS THE LIABILITY LIMITS OR DAMAGES EXCLUSIONS IN SECTIONS 14–15.

Company shall not be liable for any loss, liability, or damage resulting from any failure to perform or any delay in shipment(s), including but not limited to an act or failure to act of the Shipping Provider, an act of God, an act of Customer, weather conditions, fire, theft, flood, earthquake, power outage, Shipping Unit(s) failure, war, riots, sabotage, slow-down, strike or other labor difficulty, shortages of materials, natural disaster, riot, acts of terrorism, embargo, government act, regulation, rule ordinance or request or inability to obtain necessary labor, materials, manufacturing facilities, or transportation or any customs related delays.

12. TAXES AND SURCHARGES

Customer shall pay when due all taxes, surcharges, duties, fee, fines, assessments, and penalties related to each Order, including without limitation, documentation fees, filing fees, credit fees, inspection fees, early termination, or assumption fees, use taxes, and business taxes. If Company pays any taxes or fees on Customer’s behalf, Customer shall promptly pay Company for one-hundred and ten percent (110%) of all such payments on demand, plus any fines, penalties, or other charges which arise on account of Customer’s failure to pay such taxes or fees to the appropriate governmental authorities.

14. NO WARRANTIES

ALL OF COMPANY’S SERVICES AND SHIPPING UNIT(S) ARE PROVIDED “AS IS” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND.  

Customer should contact Company if difficulties arise with the For-Hire Equipment. Company will make every reasonable commercial effort to assist Customer. For-Hire Equipment is manufactured by someone other than Company and may include a warranty by the manufacturer. If a manufacturer’s warranty is in effect, Company will make a copy available to Customer upon request. Only the manufacturer is responsible for performance under its warranty.  

CUSTOMER ACKNOWLEDGES RECEIPT OF SHIPPING UNIT(S) “AS IS” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, ON THE PART OF COMPANY AND AGREES TO BE BOUND BY THE LIMITATIONS OF THIS PARAGRAPH TO THE EXTENT ALLOWED BY THE APPLICABLE LAW.

Customer is responsible for Shipping Unit(s) from the time Shipping Unit(s) is retrieved by the Shipping Provider or anyone else until such time as it is actually received by Company at the final destination listed on the applicable Order. Customer agrees Customer is responsible for all damage and liability arising out of use of Shipping Unit(s) or a defect in Shipping Unit(s). Customer agrees Customer is liable for any acts or omissions including, but not limited to, improper or insufficient packaging, securing, marking, or addressing or for the acts or omission of the recipient or anyone else with an interest in Shipping Unit(s). Company does not guarantee performance, temperature stability, or anything else related to Shipping Unit(s).

The GPS/Temperature monitoring system is NOT part of the Service provided to Customer, rather it is a complimentary add-on feature used by Company to collect anonymous data.  As such Company does not warrant the accuracy of any data provided by the GPS/Temperature monitoring system.  All data collected by the GPS/Temperature monitoring system is the sole property of Company and may not be accessed by Customer in any way.  Customer may have access to GPS/Temperature data via Company’s website and automatic updates; however Company does not warrant that the data or information is accurate.  Customer agrees that such data shall NOT be deemed admissible in court,  or arbitration unless and until Company introduces such data as evidence. Customer agrees that such data shall not be used by Customer as evidence against Company for any purpose in court ,arbitration, or in a claim under the Company’s offered service guarantee. Company reserves the right to refer to such data to dispute claims under the Company’s Service Guarantee and  for the use of any internal insurance claims and/or general legal disputes.

COMPANY EXCLUDES ALL WARRANTIES WITH RESPECT TO THE GPS/TEMPERATURE MONITORING SYSTEM AND THE DATA COLLECTED, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, COURSE OF DEALING, TRADE USAGE, REPRESENTATION, STATEMENT, OR OTHERWISE.

COMPANY HEREBY EXCLUDES ALL WARRANTIES WITH REPECT TO THE SERVICE, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, COURSE OF DEALING, TRADE USAGE, REPRESENTATION, STATEMENT, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. COMPANY ALSO EXCLUDES ALL OTHER OBLIBATIONS AND LIABILITIES IN CONNECTION WITH THE LEASE OR USE OF SHIPPING UNIT(S) AND ALL OTHER SERVICES PERFORMED FOR CUSTOMER. COMPANY SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO ANYONE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OR PROFITS AND LOST SAVING, HOWEVER CAUSED, WHETHER BY BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OR WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT COMPANY OR A SHIPPING PROVIDER OR ANY OTHER PERSON WHO USES THE SERVICES LISTED IN AND/OR PROVIDED UNDER THIS AGREEMENT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT SHALL COMPANY BE LIABLE FOR THE COST OF PROCUREMENT OF A SUBSTITUTE SHIPPING UNIT. COMPANY’S MAXIMUM LIABITY FOR EACH ORDER, FOR ANY REASON, SHALL NOT EXCEED THE LIABILITY LIMIT (DEFINED BELOW).

Company neither assumes nor authorizes any person, firm, or entity to assume for Company any additional liability or responsibility in connection with Shipping Unit(s).

WIRELESS DEVICES, CELLULAR SERVICES, INTERNET SERVICES, AND/OR WIRELESS SERVICES, IF APPLICABLE, ARE PROVIDED BY THIRD PARTIES. COMPANY MAKES NO WARRANTIES THAT WIRELESS DEVICES WILL PERFORM OR CELLULAR SERVICES, INTERNET SERVICES, OR WIRELESS SERVICES, IF APPLICABLE, WILL BE UNINTERRUPTED OR ERROR FREE, OR THE LIKE, OR THAT CELLULAR SERVICE, INTERNET SERVICE AND/OR WIRELESS SERVICE WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR THROUGHPUT RATE. WIRELESS DEVICES, CELLULAR SERVICES, INTERNET SERVICES, AND/OR WIRELESS SERVICES SHOULD NOT BE RELIED ON FOR CRITICAL USES. CELLULAR SERVICES, INTERNET SERVICES, AND WIRELESS SERVICES USE RADIO TRANSMISSIONS AND/OR CELL TOWERS AND, THEREFORE, RADIO, CELLULAR, OR OTHER TRANSMISSIONS OF DATA MAY NOT BE RECEIVED IF THE WIRELESS DEVICE IS NOT WITHIN RANGE OF AN AVAILABLE ACCESS POINT. EVEN WITHIN A COVERAGE AREA, THERE ARE MANY FACTORS THAT MAY IMPACT AVAILABILITY AND QUALITY OF THE CELLULAR SERVICE, INTERNET SERVICE, AND/OR WIRELESS SERVICE, AND RADIO TRANSMISSIONS AND CELLULAR TRANSMISSIONS, INCLUDING NETWORK CAPACITY, TERRAIN, TREES, PLACEMENT OF BUILDINGS, AND THE CHARACTERISTICS OF THE WIRELESS DEVICE AND ANY DEVICE TO WHICH IT IS ATTACHED. DATA DELAYS AND OMISSIONS MAY OCCUR. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF WIRELESS DEVICE(S), CELLULAR SERVICES, INTERNET SERVICES, AND/OR WIRELESS SERVICES, IF APPLICABLE, IS AT CUSTOMER’S SOLE RISK AND TRANSMISSIONS OF DATA IS NOT GUARANTEED BY COMPANY OR ANY THIRD-PARTY PROVIDER.

15. LIMITED LIABILITY

Liability for Shipping Unit(s) is transferred to Customer at the time Shipping Unit(s) is picked up from Company’s facility by Customer, Shipping Provider, or anyone else authorized by Customer. Customer assumes all liability for Shipping Unit(s) and any Specimen(s) or other items the Customer or someone else places into Shipping Unit(s) and Customer agrees that Company is not liable for any loss, destruction, confiscation, damage to Shipping Unit(s), Shipping Unit(s) failure, or for damage to any items Customer or someone else places in Shipping Unit(s).

Customer MUST declare the value of any Order or Specimen(s) contained with a Shipping Unit(s) via a Services Agreement (the “Declared Value”). The Declared Value must be reasonable and fair market. The Declared Value of any Order does NOT represent Company’s potential liability in connection with an Order, including, but not limited to, any loss, damage, delay, mis-delivery, nondelivery, misinformation, any failure to provide information, or mis-delivery of information related to the Order. The Declared Value is only for Customer’s internal usage with respect to any insurance coverage, or any other person, entity, or entities insurance coverage for shipping related to an Order. Company’s liability for each Order due to shipping issues, such as damage to the Shipping Unit(s), loss, destruction, or delay of the Shipping Unit(s) and/or Specimen(s) is limited to $200.00 USD (the “Liability Limit”). Exposure to and risk of any loss in excess of the Liability Limit is assumed by Customer. Customer may transfer this risk to an insurance carrier of its choice through the purchase of an insurance policy and should contact an insurance agent or broker if Customer desires insurance coverage.

COMPANY DOES NOT PROVIDE INSURANCE COVERAGE OF ANY KIND. CUSTOMER ACKNOWLEDGES THAT IT IS CUSTOMER’S RESPONSIBILITY TO SECURE INSURANCE COVERAGE FOR THE VALUE OF ANY SPECIMEN(S), MATERIAL, OR OTHER ITEMS SHIPPED IN AN ORDER. COMPANY’S ACCEPTANCE OF AN ORDER BEARING A DECLARED VALUE IN EXCESS OF THE LIABILITY LIMIT DOES NOT CONSTITUTE A WAIVER OF THE LIABILITY LIMIT REGARDLESS OF THE DECLARED VALUE OF AN ORDER. COMPANY’S LIABILITY FOR LOSS, DAMAGE, DELAY, MIS-DELIVERY, NON- DELIVERY, MISINFORMATION, ANY FAILURE TO PROVIDE INFORMATION, OR MIS-DELIVERY OF INFORMATION, SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE LIABILITY LIMIT.

Company may, at its sole discretion, provide a Service Guarantee of twenty-five thousand ($25,000.00 USD) or fifty thousand dollars ($50,000.00 USD) or other specified and clearly documented amount recorded on the shipping order or as part of an executed corporate agreement. Such Guarantee shall be set forth in a separate Services Guarantee document and attached hereto.  Should Customer’s Specimen(s) be lost or destroyed due to a failure of the Shipping Unit(s) and Customer can provide specific and unequivocal evidence of the same, via guidelines set forth in the Service Guarantee, Company shall review the evidence and may offer a payment in remuneration for the destruction of the Specimen(s) up to $50,000.00. The value of any loss and the applicability/availability of the guarantee shall be at the sole determination and discretion of the Company and shall be set forth in a separate document attached hereto.

Customer is responsible for accurately completing an Order or other shipping documents, including completion of the Declared Value section. Company cannot honor requests to change the Declared Value information of an Order. COMPANY WILL NOT BE LIABLE FOR ANY ORDER IN EXCESS OF THE LIABILITY LIMIT, WHETHER OR NOT COMPANY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES MIGHT BE INCURRED. COMPANY OR SHIPPING PROVIDER CANNOT VERIFY NOR GUARANTEE THE VIABILITY OF THE SPECIMEN(S) OR ANY ITEM BEING SHIPPED.

For avoidance of doubt, Customer has been advised and understands that there are inherit risks when transporting, shipping, or otherwise transferring Specimen(s) or other items including, but not limited to, damage to the Specimen(s) or any other item placed in Shipping Unit(s). Company does not guarantee or warranty, and will not be liable for, nor will any adjustments, refunds, or credits of any kind be given as a result of any possible loss, damage, delay in delivery, mis-delivery, nondelivery, degradation, spoilage, decrease in temperature, contamination, misinformation, of any portion or all of Specimen (s) or other item(s) for any reason, including but without limitation, Company’s negligence, circumstances beyond Company’s control, or failure to provide information caused by or resulting in whole or part from:

1. The act, default, or omission of any person or entity, other than Company, including those of any local, state, or federal government agencies or Shipping Provider.
2. The nature of the shipment, including any defect, characteristic, or inherit vice of the shipment.
3. Any loss of, or damage to, shipments or contents of shipments not acceptable for transportation.
4. Customer’s violation of any of the term(s) and/or condition(s) contained in the Terms and Conditions, as amended or supplemented, or on an Order, including, but not limited to, the improper or insufficient packing, securing, marking, and addressing of shipment(s), or the use of an account number not in good credit standing, or failure to give notices in the manner and/or time prescribed.
5. Company’s compliance with verbal or written delivery instructions from the Customer, Shipping Provider, sender, recipient, or persons claiming to represent Shipping Unit(s) or recipient.
6. Damage or loss of materials placed in Shipping Unit(s) by Customer or Shipping Provider, or any other person or entity.
7. Company’s inability to provide a copy of the delivery record or a copy of the signature obtained at delivery, if any, from the Shipping Provider.
8. Perils of the air, public enemies, acts or omissions of governmental, military, or regulatory interference including Transportation Security Administration (TSA), homeland security, customs, or quarantine officials, criminal acts of any person(s) or entities, including, but not limited to, acts of terrorism, public authorities acting with actual or apparent authority, authority of law, local disputes, civil commotions, hazards incident to acts of war or a state of war, local or national weather conditions, national or local disruptions in air or ground transportation networks (as determined solely by Company), strikes or anticipated strikes
9. Failure by the Shipping Provider or any third party in possessions of Shipping Unit(s) during the Service, to honor package-oriented graphics (e.g., “up arrows”, “this end up” marking), “fragile” labels, or other special directions concerning packaging.
10. Customer’s failure to follow all of Company’s packaging instructions for Shipping Unit(s).
11. Company’s failure to notify Customer of any delays, loss, or damage in connection with an Order or any inaccuracy of such notice.
12. Customer’s failure to provide accurate delivery address information.
13. Any Order which violates the terms and conditions of the Shipping Provider.
14. Failing to meet a delivery commitment for any Order with an incomplete or incorrect address.
15. Failing to meet a delivery commitment for any Order for any reason not already specified.

COMPANY RECOMMENDS THAT CUSTOMER PURCHASE SHIPPING AND/OR OTHER INSURANCE TO PROTECT CUSTOMER FROM THE AFOREMENTIONED AND OTHER RISKS.

Except as expressly provided above under the Liability Limit, Customer acknowledges that by the releases in Section 14 (No Warranties) and this Section 15 (Limited Liability) Customer waives and releases any right Customer might otherwise have, now or in the future, to sue or otherwise seek monetary damages or other relief against, and Customer expressly releases, Company and its affiliates, and each of their members, shareholders, directors, officers, employees, agents, representatives, contractors, vendors, healthcare providers, successors, and assigns to the fullest extent permitted by law from any claims, losses, damage, expenses, liabilities, demands, offsets, causes of action and attorneys’ fees which Customer may have arising out of or in any way relating to this Agreement, including but not limited to the shipping, thawing, sale, purchase of any services, release, loss, damage or destruction of the Specimen(s) or otherwise in connection with services provided by Company pursuant to this Agreement.

16. DEFAULT

Customer is in default of these Terms and Conditions if any of the following occurs: (a) Customer fails to pay any Payment Obligation or other sum when due and such failure is not cured within thirty (30) days; (b) Customer breaches any warranty or other obligation hereunder; (c) Customer becomes insolvent or unable to pay its debts when due, ceases business operations, makes an assignment for the benefit of creditors, or undergoes a substantial deterioration in its financial condition; or (d) Customer files (voluntarily or involuntarily) a petition for liquidation, reorganization, adjustment of debt, or similar relief under the Federal Bankruptcy Code, or any other present or future federal or state bankruptcy or insolvency law, or a trustee, receiver, or liquidator is appointed for Customer or a substantial part of Customer’s assets or business (each, a “Default”).

17. REMEDIES

Upon the expiration of the Standard Cycle or the occurrence of a Default, Company may declare the entire balance of the unpaid Payment Obligations for all Orders immediately due and payable, sue for and receive all Payment Obligations and any other payments then accrued or accelerated under the Terms and Conditions plus the Replacement Value of Shipping Units(s) as applicable. If Customer does not pay Company any amount owing under the applicable Order(s) or the Terms and Conditions within the applicable payment period, then Company may charge Customer interest on all amounts due at the rate of one and a half percent (1.5%) per month, but in no event more than the maximum permitted by law, calculated from the date such amount was first due until paid in full. Customer additionally shall pay Company all fees and expenses incurred by Company in connection with the enforcement of any remedies, including reasonable attorneys’ fees and costs.

18. LIMITATIONS ON LEGAL ACTIONS

Any right Customer might have to damages, refunds, credits, recovery or reliance interests, disgorgement, restitution, injunctive relief, declaratory relief, or any other legal or equitable relief whatsoever against Company under any cause of action arising from any Order shall be extinguished unless Customer files an action within one year from the date of such Order.  

19. BINDING ARBITRATION

All disputes which arise under this Agreement shall be referred to and resolved by a single arbitrator of the Company’s choosing.  Arbitration shall be conducted in Fishers, Indiana under Indiana Law and Venue. The decision of the arbitrator shall be final and binding.

19. MISCELLANEOUS

The Terms and Conditions may be amended or supplemented only by a writing that refers explicitly to the Terms and Conditions and is signed by the authorized representative of both parties. These Terms and Conditions shall be governed by and construed with the law of the State of Indiana without regard to its conflict with law principles. Customer hereby consents to the exclusive personal jurisdiction and venue of the federal and state courts located in Hamilton County, Indiana for any matters arising out of or related to these Terms and Conditions. No waiver, alteration, or modification of any of the provisions hereof shall be binding on Company unless made in writing and duly authorized and executed by Company. A waiver or modification by Company of any condition or obligation of Customer hereunder shall not be construed as a waiver or modification of any other condition or obligation and no waiver or modification by Company granted on any one occasion shall be construed as applying to any other occasion. If any of the provisions in these Terms and Conditions are held to be in violation of applicable law or applicable court decision, then such provisions are hereby waived or amended to the extent necessary to achieve the same economic effect for the Terms and Conditions to be enforceable in such jurisdiction and the rest of the Terms and Conditions shall remain in full force and effect. The performance of any services does not make Company as agent of the Shipping Provider or any third party for any purpose. All notices, reports, approvals, and other communications required or permitted hereunder must be in writing, sent to the applicable party at its address specified in the Order and shall be effective upon receipt.