Terms and Conditions
Terms and Conditions for Orders Placed with IVF Cryo as of May 1, 2023, and Thereafter, until Further Amended.
IVF Cryo LLC provides services under this agreement subject to the following terms and conditions. Please read this agreement carefully. As this agreement is written for both individuals and corporate customers, some parts may not apply to all parties.
1. SCOPE & TERM
The customer (“Customer”) identified on any order placed with IVF Cryo LLC (the “Company”) hereby agrees to (a) the following terms and conditions, together with (b) the terms and conditions of the Shipping Provider, identified in the order (the “Shipping Provider”), as set forth on the website for such Shipping Provider, shall apply to such order (together, the “Terms and Conditions”). 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 orders until such time as any Terms and Conditions are amended, in which case such amended Terms and Conditions shall apply to future order, as applicable. Any order placed with Company by Customer shall be referred to herein as the “Order” or “Orders”. 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, and all other terms and conditions are expressly rejected.
2. CONTROLLING DOCUMENT
The acceptance by Company of any Order placed by Customer, either for (a) shipment by Customer of materials and/or other item(s) (together, the “Specimen(s)”) in any of Company’s various sized shipping containers or shipper (each such container or shipper, together with all parts, components, instruments, and other items/accessories comprising such container, referred to below as a “Shipper Unit”, “Shipping Unit”, “Shipper Units”, or “Shipping Units”), (b) any management by Company of similar shipping container owned by Customer, as may be specified in the Order(s), or (c) for any additional services as may be provided by Company from time-to-time, as may be described or referenced in an Order and/or in a written document signed by Company referencing these Terms and Conditions (all of the foregoing, the “Service” or Services”), is expressly conditioned on Customer’s agreement to the Terms and Conditions. The Terms and Conditions, together with the Order, the Services Agreement and any Schedules, Exhibits, and any attachments to the Services Agreement, if applicable, and Guarantee, if applicable, constitute the entire agreement of the parties with respect to the subject matter hereof and superseded all prior communications, representations, understandings, agreements, and course of dealings; provided however, that if Customer and Company have a written contract that refers to these Terms and Conditions, then the Terms and Conditions together with the Order and/or Guarantee augment such written contract. Any Order (other than document or communication) that is in any way inconsistent with the Terms and Conditions shall not be binding on Company unless expressly agreed to in writing by Company.
3. PAYMENT OBLIGATIONS
If services are provided under a Services Agreement, then all amounts and other terms related to a Payment Obligation shall be based solely on the terms and pricing in the applicable Services Agreement. For each Service specified in an Order, Customer shall pay to Company the applicable base fees set forth in Order (the “Base Fees”), and any additional fees and expenses chargeable to Customer that may arise pertaining to, and subsequent to the placing of, Order, such as, but not limited to, specialty courier charges (collectively, together with Base Fees, the “Payment Obligations”). Customer is financially responsible for all transportation fees, fuel fees, taxes, and any and all other transportation-related costs from the time the Shipping Unit(s) is picked up from Company’s facility until it is received back by Company at its facility. Should Customer submit a non-standard Order or similar other document which is accepted by Company, then Company reserves its right to access the appropriate fees not referenced to in any such document. Customer shall pay to Company each Payment Obligation within fifteen (15) days after the date of the applicable invoice for such Payment Obligation, unless otherwise agreed upon in an Order or in a separate writing by Company and Customer. If Customer is paying for an Order by credit card (a 3% – 4% fee will be added to Order amount for each credit card payment) or other non-cash or non-check payment method, then Payment Obligations are due to be paid immediately, and Customer’s initial authorization to pay for Service shall also apply and authorize payment for any subsequent Payment Obligation arising from fulfillment of an Order. For each Order, Customer shall be responsible, at Customer’s sole cost, for all fees and expenses (which shall be included in the Payment Obligations) of the delivery of Shipping Unit(s) to and from such addresses that are set forth in the Order. 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
Customer shall place each Order with Company in such a manner, by such means, and containing such information as specified and required by Company. Company reserves the right, at its sole option, to determine the date an Order is processed for shipment and the date to release Shipping Unit(s) to the Shipping Provider. Customer shall have the right to cancel an Order, at no charge, until that Order is processed for shipment by providing express written notification thereof to Company. If notification is not received before an Order is processed for shipment, then the full Payment Obligation is due and payable. All Payment Obligations are due and payable at the time of commencement of Service. Unless Customer designates the Shipping Provider and method of transportation to Company on 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) that are the subject of Order available for pick-up by the Shipping Provider as of the Order’s scheduled commencement of Service or at an earlier date, at Company’s sole option, at the address indicated on the Order.
5. STANDARD CYCLE AND CYCLE FEES FOR SERVICES USING SHIPPER UNIT( S)
Unless otherwise agreed to in an Order or per a separate written agreement, the standard cycle for Service using a Shipper Unit is 10 days (the “Standard Cycle”). Customer agrees to pay a lease rate fee or other assessed fee for each such Standard Cycle (the “Cycle Fee”). The initial Cycle fee is applicable starting the day the Shipper Unit is shipped from Company’s facility. An additional Cycle Fee shall apply if the Shipper Unit is not returned within Standard Cycle period to Company’s facility from where the Shipping Unit originally shipped. 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 50% (the “Revised Cycle Fee”). For any Shipper Unit that is not returned, upon the day after each Standard Cycle (or each Revised Standard Cycle if applicable) is completed, Customer shall be charged an additional Cycle Fee (or Revised Cycle Fee if applicable). Company will charge Customer up to three such additional Cycle Fees (or Revised Cycle Fee if applicable) for Customer’s failure to return the Shipper Unit. If the Shipper Unit is still not returned by the end of the third such additional cycle, then Customer shall be charged the full replacement cost for the non-returned Shipper Unit, a “Lost Shipper Unit Fee”. If Customer later locates or finds the lost Shipper Unit, and on the condition that both that Customer has paid all applicable Cycle Fees (including any applicate Revised Cycle Fees) and has paid the Lost Shipper Unit Fee within fifteen (15) days of receiving a bill for the lost item, then Customer shall be eligible to receive a credit for up to fifty percent (50%) of the Lost Shipper Fee, subject to the Shipper Unit being returned to Company, re-validated and tested, and placed back into service upon verification of no damages.
6. RIGHTS OF SHIPPER UNIT( S); INSPECTION OF SHIPPER UNIT( S)
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 any right, title, or interest in or to Shipper Unit(s). The Shipping Unit(s) shall at all times be the sole and exclusive property of Company, and Customer 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 (or Shipping Provider(s) specified on the Order) has the right to maintain possession of Shipper Unit(s) conditional upon Customer’s compliance with the Terms and Conditions. Customer shall not, without the prior written consent of Company, assign or sublease any Shipper Unit(s), or hypothecate, pledge, or otherwise encumber or suffer a lien upon or against or otherwise convey any interest in any Shipper Unit(s) (or purport to do any of the foregoing). Customer shall indemnify Company from any and all losses, liabilities, damages, or expenses (including reasonable attorneys’ fees and costs) resulting from any such actual or purported assignment, sublease, hypothecation, pledge, encumbrance, lien, or conveyance. Customer agrees not to remove or alter any identification on Shipping Unit(s) or in any way attempt to transfer any 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, Shipper Unit(s).
7. RETURN OF SHIPPER UNIT( S)
On or before the expiration of a Standard Cycle, Customer shall return Shipper Unit(s) to the address, typically a Company facility, specified in the applicable Order, 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 Shipper Unit(s) is not diminished by the fact that Customer may deliver Shipper Unit(s) to FedEx, UPS, or another third-party shipping service paid for by the Customer. Payment Obligations may include fees and expenses owning in the event of (i) delay in the return of all Shipper Unit(s) beyond the applicable Standard Cycle, (ii) change (other than by Company) made to any shipping address to which Shipper Unit(s) will be delivered, or (iii) change (other than by Company) to the time of delivery of Shipper Unit(s).
8. MAINTENANCE AND USE
Customer shall (a) use Shipper Unit(s) in a careful and proper manner and 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 Shipper Unit(s) or allow Shipper Unit(s) to be used for any unlawful purpose, (c) not modify or alter Shipper Unit(s) in any manner whatsoever,
(d) not reverse engineer, disassemble, or determine or attempt to determine the composition, production, or characteristics of Shipper Unit(s) (or any component thereof), (e) use every reasonable precaution to prevent loss or damage to Shipper 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). Further, if during a delivery, a Shipper Unit experiences a spill or other such contamination, Customer shall promptly provide written notice to Company of the spill or other such contamination. Company will then provide Customer with commercially reasonable instructions as to how to address the spill or other such contamination. Customer will fully cooperate with Company and any insurance companies producing insurance in accordance with the Terms and Conditions in the investigation and defense of any claims and suits arising from the use or operation of Shipper Unit(s). Customer shall use Shipper Unit(s) only for transportation of Specimen(s) in compliance with all such applicable laws, ordinances, or regulations. Customer shall cause any third party, identified on Order and accepted by Company, that Customer permits to use Shipper Unit(s) to be bound by the Terms and Conditions; any such third party shall be bound by the Terms and Conditions; and Customer, in addition to such third party, shall be responsible for any such third party’s compliance with (and any breach of) the Terms and Conditions. Customer or its designee shall be solely responsible for making any and all filings and for providing any and all information relating to the contents of Shipper Unit(s) (including without limitation, any Electronic Export Information), and for the accuracy and completeness thereof. Customer is responsible to contact 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 CONTROL
Company is headquartered in the U.S. and will not conduct business that violates U.S. export controls nor export controls in the 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 SHIPPER UNIT( S)
Customer shall be financially responsible for, and Customer’s credit card may be charged for or Customer may be invoiced for,
(i)any damaged of Shipper Unit(s); (ii) the loss of Shipper 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, and (iii) payment to Company for any damage to, or loss of, Shipper Unit(s). Customers is responsible for, and shall bear all risk of, loss, damage, theft, destruction, attachment, seizure, or the like of or to Shipper Unit(s) and/or Specimen(s) placed in Shipper Unit(s) by Customer or someone else, even if caused by someone else or if the cause is unknown (any such event, a “Casualty”), reasonable wear and tear excepted for Shipper 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. NO COMPANY INDEMNIFICATION; CUSTOMER INDEMNIFICATION
Company shall not be responsible for any injuries, losses, or liabilities to Customer or any third party resulting from or arising out of (a) the Service(s) and the possession or use of Shipper Unit(s), (b) any breach of representation, warranty, or covenant under the Terms and Conditions or any inaccuracy of information supplied by Customer on Order(s), or (c) 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 Shipper Unit(s). Customer assumes all responsibility for any injuries, losses, or liabilities to Customer or any third party. Customer is responsible for any Specimen(s) placed in Shipper 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 Shipper Unit(s) by Customer or someone else after Shipper 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 Shipper 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 such third-party action and Customer agrees to immediately assume full control and responsibility for such matter including the payment of all expenses and liabilities, including attorneys’ and experts’ fees in connection therewith; provided, however, that Customer shall not settle any such action without the prior written consent of Company, which consent shall not be unreasonably withheld.
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 Shipper 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, 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 Shipper Unit(s). The indemnity obligation shall survive Order(s) and all services provided by Company related to Order(s) and under this Agreement.
12. NO LIABILITY FOR DELAY
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.
13. TAXES AND OTHER CHARGES
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
Customer should contact Company if difficulties arise with the For-Hire Equipment; Company will attempt to assist. For-Hire Equipment is manufactured by someone other than Company and may include a warrant 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. ALL OF COMPANY’S SERVICES AND SHIPPING UNIT(S) ARE PROVIDED “AS IS” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND.
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 at Company’s location listed on the applicable Order until such time as it is actually received by Company at the location 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 the performance, temperature stability, or anything else related to Shipping Unit(s).
COMPANY HEREBY EXCLUDES ALL WARRANTIES WITH REPECT TO THE SERVICE, WHETHER EXPRESSED 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 ( NOT INSURANCE COVERAGE )
Liability for Shipping Unit(s) is transferred to Customer at the time Shipping Unit(s) is picked up from Company’s facility. 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 agrees that except as set forth in “Liquidated Damages” below, Customer shall not be entitled to any form of damages, compensation, recovery, or reimbursement and hereby releases Company from all liability in connection with any loss, damage, or destruction of a Specimen(s) due to the risks described in this section or otherwise. 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, non-delivery, misinformation, any failure to provide information, or mis-delivery of information related to the Order (the “Declared Value”). The declared value is only for Customer’s internal usage with respect to any insurance Customer or any other person, entity, or entities carries for shipping related of an Order. Company’s liability for each Order is limited to US $200 (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 any 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 CONTENTS SHIPPED ON 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, WILL NOT EXCEED THE LIABILITY LIMIT.
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 on 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. THE COMPANY OR SHIPPING PROVIDER CANNOT VERIFY NOR GUARANTEE THE VIABILITY OF THE SPECIMEN(S) OR ANY ITEM BEING SHIPPED. Customer has been advised and understands that there are inherit risks when transporting, shipping, or otherwise transferring Specimens or other items including, but not limited to, damage to the Specimen or any other item placed in Shipping Unit(s). Company does not guarantee, and will not be liable for, nor will any adjustments, refund, or credit of any kind be given as a result of any possible loss, damage, delay in delivery, mis-delivery, non-delivery, degradation, spoilage, decrease in temperature, contamination, misinformation, or the like of any portion or all of Specimen (s) or other item(s) for any reason, including but without limitation, as a result of Company’s negligence or as a result of circumstances beyond Company’s control, or any failure to provide information caused by or resulting in whole or part from:
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.
The nature of the shipment, including any defect, characteristic, or inherit vice of the shipment.
Any loss of, or damage to, shipments or contents of shipments not acceptable for transportation.
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.
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.
Damage or loss of materials placed in Shipping Unit(s) by Customer or Shipping Provider, or any other person or entity.
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.
Perils of the air, public enemies, acts or omissions of governmental, military, or regulatory interference including 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 (of any entity, including, but not limited to, carrier, suppliers, or vendors), labor disruptions or shortages, pandemic conditions or other public health event or circumstances, natural disasters (earthquakes, fires, floods, and hurricanes are examples of natural disasters), conditions that present a danger to Company’s personnel, acts of vandalism, and disruptions, failure of communications and information systems (including, but not limited to, Company’s systems), or any other cause not within the direct or immediate control of Company.
Failure by the Shipping Provider or any third party in possessions of Shipper 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.
Customer’s failure to follow all of Company’s packaging instructions for Shipping Unit(s).
Company’s failure to notify Customer of any delays, loss, or damage in connection with an Order or any inaccuracy of such notice.
Performance of a Service will not constitute Company as the Customer’s or anyone’s agent for any purpose.
Customer’s failure to provide accurate delivery address information.
Any Order which violates the terms and conditions of the Shipping Provider.
Failing to meet a delivery commitment for any Order with an incomplete or incorrect address.
COMPANY RECOMMENDS THAT CUSTOMER PURCHASES 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 gives up any right Customer might otherwise have, now or in the future, to sue or otherwise seek money 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.
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; Customer stops doing business, Customer makes an assignment for the benefit of creditors, or Customer 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”).
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 Shipper 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 mutually acceptable to both parties. If Company and Customer cannot mutually agree to an arbitrator within forty-five (45) days after either party demands arbitration, then the arbitration shall be conducted by ADR Services, Inc. and the arbitrator shall be selected according to that organization’s procedures and its rules shall govern. If ADR Services, Inc. is for any reason not available to conduct the arbitration, then the arbitration shall be conducted by the American Arbitration Association and the arbitrator shall be selected according to its procedures and its rules shall govern. Arbitration shall be conducted in Anderson, Indiana. The decision of the arbitrator shall be final and binding and may be entered in and enforced by any court of competent jurisdiction.
The Terms and Conditions may be amended or supplemented only by a writing that refers explicitly to the Terms and Conditions and this 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.
21. GUARANTEE (IF APPLICABLE)
The following Terms and Conditions apply if Customer selects a Service which includes a Service Guarantee (the “Guarantee”)
A claim against Guarantee must be filed, in writing, to the Company, within 30 days of delivery of Shipping Unit(s) to the destination address on Order.
Customer is responsible for reviewing and ensuring all information contained on Order is correct prior to the shipment of Shipping Unit(s). Guarantee is void if Order contains any inaccurate information. The recipient’s address on the Order must be an eligible street address recognized by the U.S. Postal Service and Shipping Provider.
Shipment-status information provided by Company and/or a third party, such as GPS location and temperature monitoring information, is not intended or permitted to be used by Customer to file a claim or as support for a claim.
Receipt of Shipping Unit(s) by any recipient without written notice of damage at the time of delivery on Shipping Provider’s delivery record is prima facie evidence that Shipper Unit(s) was delivered in good condition and without damage of any kind.
Disposition of Claims: Company will, after receiving a written claim against Guarantee, either pay the value requested by Customer in their claim or the amount of the related Guarantee, whichever is lower; or decline, or make a firm compromise settlement offer in writing to Customer within 120 days after receipt of claim by Company. If a claim cannot be processed and disposed of within 120 days after the receipt thereof, Company will advise Customer in writing of the status of the claim and the reason for the delay in making final disposition. Acceptance of payment of a claim by Customer shall extinguish any right to recover in connection with the related Guarantee.
Payment under Guarantee may be paid in equal installments over a period of up to twelve (12) months at the sole option of the Company.
All parties connected with an Order, under any and all circumstances, must adhere to any Package Handling Instructions provided by Company.
FAILURE TO PROVIDE ANY INFORMATION REQUIRED ON A CLAIM WILL RESULT IN THE DENIAL OF A CLAIM ON THE RELATED GUARANTEEE.
MAKING A FRAUDULENT OR UNSUPPORTED CLAIM, AS DETERMINED SOLELY BY COMPANY, VOIDS THE RELATED GUARANTEE.
COMPANY OR SHIPPING PROVIDER CANNOT VERIFY NOR GUARANTEE THE VIABILITY OF THE SPECIMEN(S) OR ANY OTHER ITEMS BEING SHIPPED.