Talis Biomedical Corporation Terms of Sale
Effective: 1 January 2022
These Terms of Sale (the “Terms”) are made between Talis Biomedical Corporation (“Talis”) and the customer identified on a Quotation or other formal written contract (“Customer”). These Terms, any Quotation(s), and any other contract documents expressly made a part of the agreement between Talis and the Customer shall be referred to collectively as the “Agreement.”
These Terms govern the purchase, sale, and use of the Talis One and other products provided by Talis (including any services provided in connection with Talis’s products).
1. Applicability of these Terms. All purchases, leases, and use of products by Customer are expressly limited and conditioned upon acceptance of these Terms. Customer’s execution of a Quotation incorporating these Terms of Sale, placement of an order, or use of Talis’s products deems Customer to have fully accepted and agreed to the terms and conditions stated herein. Notwithstanding the foregoing, if Talis and Customer have executed a formal written contract which is in full force and effect and, by its terms, is intended to partially or entirely supersede these Terms the terms of that contract will apply and govern to the exclusion of any inconsistent terms set forth herein. For products ordered under Talis’s standard ordering document, or modified version thereof (in both cases, a “Quotation”), these Terms, as well as any additional terms set forth in the Quotation, shall apply. To the extent there is an inconsistency between any of the provisions of these Terms and a Quotation, the Quotation shall control. A term defined in a Quotation used but not defined herein shall have the meaning set forth in the Quotation.
2. Customer Documentation; Changes. Customer acknowledges and agrees that these Terms supersede the terms and conditions of any purchase order or other documentation used by Customer (“Customer Documentation”) and, except for delivery address, billing addresses, quantities, prices, and items ordered, any inconsistent or additional terms are void and have no effect. Additional special terms and conditions of Talis may be applicable with respect to certain products. Notwithstanding the foregoing, Talis reserves the right at any time to amend these Terms, and Customer shall be deemed to accept the updated Terms by ordering products after the date of such amendment.
3. Pricing and Taxes. All pricing quotes must be written and all prices are valid for thirty (30) days from the date quoted, unless otherwise provided in the pricing quote. Unless otherwise stated in Talis’s documentation, all prices: (a) are quoted and payable in U.S. Dollars, (b) refer to full case quantities, (c) are subject to change at Talis’s discretion without prior notice, and (d) do not include applicable freight, handling, packaging, transportation charges, insurance, taxes, excises, duties, levies, tariffs, or other governmental impositions or assessments which Talis may be required to pay or collect. Unless otherwise stated in Talis’s documentation, any applicable freight, handling, packaging, transportation charges, insurance, taxes, excises, duties, levies, tariffs, or other governmental impositions or assessments are the responsibility of Customer and, if paid by Talis for Customer’s account, shall be invoiced to Customer either with the products or separately. In the event Customer changes any order (if, and when, permitted by Talis), Talis may adjust prices accordingly.
If Customer provides Talis with a valid certificate and necessary supporting documentation demonstrating its tax-exempt status, Talis will not bill such taxes to Customer as long as Customer maintains its taxexempt status. Customer will promptly notify Talis in writing if Customer’s tax-exempt status is revoked.
The prices on an executed Quotation shall remain firm for the term of the Quotation. Talis may increase prices annually thereafter, provided that a price increase does not exceed the percentage increase in the Producer Price Index – in vitro diagnostic substance manufacturing – NAICS code 325413, as published by the U.S. Department of Labor, Bureau of Labor Statistics or any successor agency that assumes responsibility for preparation of the index, over the twelve (12) -month period preceding the last day of the most recently ended month prior to the notice of purchase price increase. Notwithstanding the preceding sentence, third-party branded product sold by Talis (“Third-Party Product”) shall not be subject to the cap on price increase, it being acknowledged that Talis is not in direct control of the cost of Third-Party Product.
4. Delivery and Shipment. Talis will use reasonable efforts to deliver products under accepted orders in accordance with a delivery schedule provided with the Quotation, order acceptance, acknowledgment, confirmation, or similar document and, if no such schedule is stated, in accordance with Talis’s default shipment schedule. However, Talis shall not be liable for nonperformance or delays caused by a shortage of raw materials, manufacturing problems, delivery or labor problems, priorities, acts of regulatory agencies or judicial bodies, discontinuation of a product line, acts of God or third parties, infringement claims, or other causes beyond its reasonable control. Customer agrees that in such events Talis may allocate products among all purchasers as it deems reasonable, without liability. Talis reserves the right from time to time to substitute a product with a product that has the same function as such product, or to delete a product from its product lists. Customer may request to reschedule shipments up to five (5) business days prior to the scheduled ship date.
All products will be shipped FOB Origin, Talis’s point of shipment. All packing, transportation expenses, handling charges, freight, and insurance (if any) shall be charged to the Customer as a separate line item on an invoice. The Customer can arrange shipment at its expense with its preferred carrier, provided Customer provides Talis all necessary information. International Customers shall, at their sole expense, perform all functions necessary to clear the products through all customs and similar controls into the country. Talis will select the mode of shipment and the carrier but shall not be deemed thereby to assume any liability in connection with the shipment nor shall the carrier be construed as an agent of Talis.
Title to the products and risk of loss, damage, and delay will pass to Customer upon Talis’s tender of delivery of the products. Talis shall not be obligated to procure additional insurance. Talis’s retention of title or security interest in product tendered to Customer shall not prevent the transfer of risk of loss, damage, or delay to Customer.
When expedited delivery, specialized service, or alternate transportation modes are requested, or if requests are inconsistent with efficient distribution practices, an additional charge to cover the premium expense will be added to the invoice. Such additional charges will be based on current common carrier rates or hourly rates.
Upon receipt of products, Customer shall count and inspect the shipment before the carrier departs. Claims by Customer for damage in transit should be made to the transit company. When damaged freight is received or when the shipment is short, a detailed notation should be made on the delivery receipt and signed by the carrier’s driver. When damage is detected after delivery, Customer shall notify the carrier immediately and save the shipping container until the carrier completes its inspection. Customer shall be responsible for filing freight claims. Assistance may be obtained by calling Talis’s customer service as provided below. If the products are held by Talis at Customer’s request, Talis may invoice the products and Customer agrees to make payment. Products invoiced and held at any location by Talis will be held at Customer’s risk and Talis may charge for insurance and storage (but is not obligated to carry any insurance). Customer will accept and pay for partial deliveries. When Customer has declared or manifested an intention not to accept delivery, no tender will be necessary, but Talis may, at its option, give notice to Customer that Talis is ready and willing to deliver, and such notice will constitute a valid tender of delivery.
5. Inspection, Acceptance, and RMA. Customer shall be allowed five (5) days from the date of receipt of any order to provide a written notice of rejection to Talis of any product that (i) fails in a material way to meet the product insert specifications, (ii) is damaged, or (iii) has other visible defects. Customer’s notice shall state with particularity the reasons for such rejection. If Customer does not deliver such written notice to Talis within five (5) days, Customer shall be deemed to have accepted the products as shipped. If products are damaged in transit, or are shipped in error, Customer must make a report to the carrier and inform Talis within five (5) business days after receipt of the products.
Customer’s right to return product hereunder is subject to Talis’s RMA policy (if any) and limited to (i) non-conforming product (i.e., product that fails in a material way to meet the product insert specifications, is damaged, or has other visible defects); (ii) returns under the warranty set forth in Section 6; and (iii) suspended or recalled product. PRIOR TO RETURNING ANY PRODUCT, CUSTOMER MUST OBTAIN A RETURN MATERIALS AUTHORIZATION NUMBER FROM TALIS (THE “RMA NUMBER”); OTHERWISE, TALIS WILL NOT BE OBLIGATED TO ACCEPT, EXCHANGE, REPLACE, OR PROVIDE CREDIT OR REFUND FOR ANY PRODUCT RETURNED BY CUSTOMER. Talis will have the right to review and inspect any product prior to its return or destruction by Customer. All returned products must be in the original package and display the appropriate reference to the RMA Number on outside containers.
As promptly as practicable after written confirmation by Talis of properly rejected products and if Talis desires that Customer return a product, Customer shall return the same to Talis freight prepaid. Talis will, in its sole discretion, either (i) issue a credit or refund for properly rejected and authorized returned products or (ii) replace the product. Replacement product provided by Talis during the Warranty Period (defined below) will meet or exceed the specifications of the replaced products. Talis will use commercially reasonable efforts to ship the replacement product within 48 hours after confirmation that the warranty claim is valid. Replacement, refund, or credit pursuant to this Section 5 shall be Customer’s sole and exclusive remedy for defective, nonconforming, or incorrect product delivered by Talis hereunder, and for breach of warranty under Section 6.
6. Limited Warranty, Disclaimer, and Limited Remedies. Talis warrants that disposable product, such as Consumables and reagents, supplied to Customer under the terms herein shall conform substantially with the specifications set forth in the related product inserts and that such products will comply with and be manufactured, packed, labeled, and shipped in material compliance with all applicable laws, rules, and regulations. Talis warrants that Equipment supplied to Customer under the terms herein shall be materially free from defects in materials and workmanship for a period of twelve (12) months from the date of shipment (the “Warranty Period”). Customer may extend the Warranty Period by purchasing an extended warranty from Talis, if available.
COVERAGE UNDER TALIS’S LIMITED WARRANTY DESCRIBED IN THIS SECTION 6 (“LIMITED WARRANTY”) IS CONTINGENT UPON CUSTOMER: (i) PROPERLY USING, HANDLING, AND STORING THE APPLICABLE PRODUCT IN ACCORDANCE WITH ITS INTENDED USE AND APPLICATION AND PRODUCT SPECIFICATIONS, AND (ii) NOT MAKING MODIFICATIONS TO THE APPLICABLE PRODUCT WITHOUT TALIS’S EXPRESS, PRIOR WRITTEN APPROVAL. THE LIMITED WARRANTY DOES NOT APPLY TO DAMAGE THAT TALIS REASONABLY DETERMINES IS A RESULT OF ABNORMAL USE, MISUSE, MISHANDLING, NEGLECT, ACCIDENT, NEGLIGENCE, TAMPERING, OR UNAUTHORIZED SERVICE. ANY DEFECTIVE PRODUCT MUST BE RECEIVED BY TALIS NO LATER THAN THIRTY (30) DAYS AFTER THE DATE TALIS ISSUES AN RMA NUMBER. THE LIMITED WARRANTY IS AVAILABLE EXCLUSIVELY TO THE FIRST END-USER PURCHASER AND IS NOT ASSIGNABLE OR TRANSFERABLE.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY, TALIS HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, FOR ANY PRODUCTS FURNISHED HEREUNDER. TALIS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, AS TO DESIGN, QUALITY, CAPACITY, CONDITION, UPTIME, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, AND NON-INFRINGEMENT, OR THEIR EQUIVALENT UNDER ANY LEGAL SYSTEM. FURTHER, TALIS DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT ANY PRODUCT SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, THIRD-PARTY PRODUCT SHALL BE SUBJECT TO AND FURTHER LIMITED BY THE WARRANTY PROVIDED BY SUCH THIRD-PARTY. TALIS MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, FOR THIRD-PARTY PRODUCT.
IF ANY MODEL OR SAMPLE WAS SHOWN TO CUSTOMER, IT WAS MERELY TO ILLUSTRATE THE GENERAL TYPE AND NATURE OF THE PRODUCT AND NOT TO REPRESENT THAT THE PRODUCT WOULD NECESSARILY CONFORM TO THE MODEL OR SAMPLE.
7. Limitation of Liability. In no event shall Talis or its affiliates be liable, whether in contract, tort (including without limitation negligence), quasi-contract, misrepresentation, or otherwise, for any incidental, indirect, special, punitive, or consequential damages or loss of use, revenue, or profits in connection with or arising out of Talis’s provision of any product, or Customer’s use of any products provided by Talis, or damage to systems, programs, or data, cost of procurement of substitute goods, services, or technology, even if the parties have been advised of the possibility of such damages. Talis’s sole liability to Customer, and Customer’s sole remedy of any kind, including without limitation any failure or deficiency of the products or negligence, with respect to any item furnished by Talis, or in relation to any delay or default in supplying the products, or any other claim shall be limited to (at Talis’s option), the refund or credit of the product price for such product, together with any costs of freight and insurance incurred in connection with the shipment of such product, or, at Talis’s option, repair (with new or reconditioned parts) or replacement of such product at Talis’s cost and expense (including shipping). All replaced parts shall automatically become the property of Talis. The terms set forth herein pursuant to which Talis agrees to provide product to customer reflect the parties’ agreed upon allocation of risk, and would be different if the limited warranty, limited remedy, warranty exclusion and limitation of liability provisions were different. The limitations contained in this section shall apply even if any limited remedy fails in its essential purpose.
8. Product Notices and Recall. Customer shall within forty-eight (48) hours after receipt thereof, by phone and in writing, advise Talis should Customer receive any communication from any government agency or any complaint regarding the products, or become aware of any defect or condition which may render any of the products in violation of any statute or regulation, or which in any way alters the specifications of the products (as set forth in the related product inserts), including without limitation, product recalls and investigations. If the incident has resulted, or is likely to result in a patient reaction, Customer shall also immediately notify Talis by telephone.
Customer acknowledges and agrees that Talis has the authority, in its sole and absolute discretion, to recall any product to comply with applicable laws, and Customer agrees to fully cooperate with Talis in the case of any such recall. Further, Customer acknowledges and agrees that Third-Party Product may be recalled by a party other than Talis, in which case Customer shall cooperate with any recall initiated by such third party.
9. Payment. Terms of payment are strictly net thirty (30) days from date of invoice for pre-approved Customers. Some credit cards are accepted for payment (a transaction fee may apply). Talis reserves the right to require pre-payment or COD for product purchases. Any international Customer order shall be prepaid to Talis by electronic funds transfer in U.S. Dollars. In Talis’s sole discretion, credit terms may be extended to Customer. Customer’s obligation to pay outstanding invoices and all other amounts is absolute and unconditional and is not subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment, or recoupment for any reason whatsoever. All overdue payments shall bear interest at a rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is lower, until paid.
Any disputed amounts should be reported immediately and remitted with the undisputed amount by the payment due date. If Talis agrees with the billing dispute, Talis will credit Customer the amount of the agreed-upon billing dispute. All billing disputes must be made within sixty (60) days after the applicable invoice date or will be deemed waived by Customer.
Customer shall be liable, and shall reimburse Talis, for all costs and expenses it may incur in connection with collection of any amounts owed to Talis or enforcement of its rights, including without limitation, reasonable attorneys’ fees and expenses, court costs, and costs of collections. Talis reserves the right, in its sole discretion, to cancel any unshipped orders and/or require all future shipments to be paid in full in advance of shipment until all overdue balances are made current.
Consumable purchases will be monitored during the term of the Quotation by Talis. On a periodic basis after the installation date, Talis will reconcile the actual purchases made by Customer of any Talis Consumable product to those committed to be purchased on the Quotation (the “Annual Purchase Obligation”). Talis acknowledges that the exact purchase volume of any particular Consumable may vary from month to month, and Talis will allow reasonable variation so long as the average monthly purchases (excluding any start-up period) (the “Monthly Target Volume”) are on track to meet the Annual Purchase Obligation.
If Customer’s Consumable purchases fail to average the Monthly Target Volume over a period of three or more months, Talis may, in its discretion, take any of the following actions: (a) invoice Customer for the difference between the agreed minimum quantity of Consumables and the quantity of Consumables actually purchased, at the contract price then in effect; (b) revise the pricing applicable to the Consumables to reflect such lower volumes; or (c) where the method of payment for Equipment is dependent on the purchase of Consumables: (i) revise the payment terms or amortization schedule to ensure payment of fair market value for the Equipment, (ii) require return of the Equipment, or (iii) sell the Equipment to Customer at fair market value, in which case the Parties shall cooperate in good faith to negotiate a purchase agreement that includes, without limitation, purchase price, and warranty terms. Talis shall give Customer written notice of any action or adjustment under this Section 9.
10. Compliance with Laws. Customer will follow and comply with all applicable governmental laws, regulations, and orders in the use or import of any products. Customer will not export or reexport the products except in full compliance with all applicable laws and regulations. Customer shall be responsible for obtaining and maintaining all applicable permits, licenses, and authorizations necessary for the import or use of the products in Customer’s country at its sole expense (e.g., CITES import permits). Customer acknowledges it is solely responsible for complying with the Export Administration Act (“EAA”) provisions concerning anti-boycott compliance, and that Customer is prohibited from taking or knowingly agreeing to take any of the actions contained in the EAA, in either United States interstate or foreign commerce, with the intent to comply with, further, or support any boycott fostered or imposed by a foreign country against a country friendly to the United States. Customer certifies that it is not on the U.S. Commerce Department’s Denied Party or Entity List or the Unverified Parties List and agrees that it will not sell or distribute any products to any party on such lists. Customer agrees and warrants that in performing its obligations under these terms and conditions, it will not take any action rendering Talis liable for violation of the United States Foreign Corrupt Practices Act, which prohibits offering, giving, or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party, or instrumentality of these organizations, in order to assist it or Talis in obtaining or retaining business.
Customer shall comply with applicable state and federal laws in connection with its purchase, including, without limitation,, the federal False Claims Act (31 U.S.C. §§ 3729 et seq.), the federal Anti-kickback Statute (the “AKS,” 42 U.S.C. § 1320a-7b(b)), the federal Physician Payment Sunshine Act (U.S.C. § 1320a-7h), the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”), and any regulations implementing such laws, as well as all comparable state and local laws and regulations.
Any discounts provided in connection with the sale of products are intended to comply with the AKS. Customer acknowledges that discounts, credits, coupons, rebates, or other things of value which Customer may receive from Talis under this Agreement or otherwise may constitute a “Discount” as defined in the AKS. Customer agrees to fully and accurately report such Discounts on all applicable cost reports. Each party will maintain all documents necessary and take all additional steps necessary to ensure compliance with the AKS and the requirements related to Discounts (as defined in the AKS) and to facilitate accurate cost and price reporting relating to the products. If requested by any state or federal agency, each party will provide all information concerning the discounts that have been provided under this Agreement.
Customer represents and warrants that it is not on the HHS-OIG List of Excluded Entities, the GSA SAM Exclusion List, FDA Debarment list, or any comparable state database.
Customer acknowledges and agrees that Talis is not a HIPAA Business Associate to Customer. Customer acknowledges and agrees that Talis has the authority, in its sole and absolute discretion, to recall any Product to comply with applicable laws, and Customer agrees to fully cooperate with Talis in the case of any such recall.
Customer will indemnify and hold Talis harmless from all fees, fines, and other damages imposed on or suffered by Talis due to Customer’s failure to comply with this section. For the avoidance of doubt, nothing in this Section 10 is intended to limit the prohibition of resale set forth in Section 12 below.
11. Precautions; Approved Use. All products offered by Talis are intended for Customer’s own use by qualified professionals. Furthermore, Customer shall use any non-disposable Equipment only (i) at the Customer’s “ship to” address (unless Talis consents to moving the Equipment to another location); (ii) in the manner described in the applicable use manuals; and (iii) in accordance with all applicable laws and regulations. Customer shall not make any changes or alterations in, or attachments to, the products, or remove any labels, signs, symbols, trademarks, or serial numbers affixed to the products. Customer acknowledges that it will comply with any instructions or directions on the labeling and literature concerning the products and will forward such information to its employees, agents, and contractors. Customer shall ensure that all employees, agents, and contractors use all due care with products to prevent potential hazards and are appropriately trained in the safe use, handling, and disposal of the products. All clinical and medical treatment and diagnostic decisions are the responsibility of Customer and its professional healthcare providers, as applicable. Notwithstanding anything to the contrary within this Agreement, Customer acknowledges that the products have received clearance, authorization, or approval from the United States Food and Drug Administration (“FDA”) with respect to certain applications of the products, and any use of the products outside the scope of such FDA clearance, authorization, or approval, or the substitution of any constituent consumable, parts, or accessory not within such FDA clearance, authorization, or approval, is at the Customer’s sole and exclusive risk. Customer acknowledges that products under Emergency Use Authorization (EUA) may be subject to additional requirements as set forth in such EUA. Customer agrees to review the EUA for such products and follow all applicable requirements.
12. Prohibition on Resale and Encumbrance. Customer’s purchase or acquisition of product shall be exclusively for its own use. Customer shall not resell, transfer, convey, assign, license, or otherwise provide the products to any third party. Customer represents it has evaluated the products and that they are acceptable and clinically suitable for its intended purposes. Customer is expressly prohibited from submitting or using the products as part of any trade-in, credit, rebate, or discount program of any competitor of Talis, and acknowledges that engaging in any such conduct is a material breach of these Terms of Sale.
In the event Customer does not obtain title to any Equipment, Customer shall not permit any attachment, lien, security interest, or other encumbrance to be placed on the Equipment. Customer shall promptly notify Seller if any of the foregoing is filed or claimed and shall indemnify Talis from any loss or damage resulting from any of the foregoing.
13. Permissible Variations. Talis has the right to make changes in the composition of the products which, in Talis’s opinion, do not affect the general characteristics or properties of the products or are within applicable governmental or industry standards. Talis is not responsible for any changes made to Third-Party Product.
14. Activation of Talis Cloud and Right to Transmitted Data (If Applicable). Following registration and upon activation of data transmission settings on any Equipment compatible with the Talis Cloud, the Equipment will transmit data to Talis’s network of secured, third-party remote hosted servers (the “Talis Cloud”), which will store, manage, and process this data, from which de-identified data can then be extracted by Talis. Customer acknowledges and agrees that: (i) Talis will have an unrestricted right to access, aggregate, or otherwise edit the de-identified data Customer transmits to the Talis Cloud (“Cloud Data”); (ii) Cloud Data will be available for Talis’s unrestricted use, including aggregation with Cloud Data from other customers, including, but not limited to, submission of such de-identified data to the Centers for Disease Control or other entities for public health and surveillance purposes; and (iii) Talis owns, without restriction, all analyses based in whole or in part on Cloud Data and Talis may use such analyses for any commercial purpose. Talis may terminate Customer’s access to the Talis Cloud or Cloud Data upon thirty (30) days’ notice. Customer acknowledges and agrees to use reasonable efforts to secure all passwords and other identifiers, and that Customer is responsible for its information technology infrastructure, whether managed by Customer or a third-party.
- Any required notices shall be given in writing, in the case of Talis, at the address set forth below, and in the case of Customer, at the address designated on Customer’s purchase order or to such other address as either party may substitute by written notice to the other and shall be deemed given upon electronic or facsimile delivery, personal delivery, overnight delivery or three days following deposit in the mail.
Talis Biomedical Corporation
1375 West Fulton Market, Suite 700
Chicago, IL 60605
Attn: Legal Department
- Except as expressly provided herein, no changes or modifications to, or waiver of, any of these terms and conditions shall be valid or binding on either party unless in writing and signed by an authorized representative of each party. Talis’s failure or delay to exercise or enforce any of its rights under the Agreement shall not constitute or be deemed to be a waiver of such rights or forfeiture of such rights, and Talis may, at its option, from time to time, exercise any of its rights or remedies.
- The Agreement contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof.
- The Agreement binds Customer and its successors and permitted assigns.
- In respect of any action, suit, or other proceeding resulting from any controversy, dispute, or claim arising out of the Agreement or the sale or use of products (“Claim”), the Agreement will be governed by, construed, and enforced in accordance with the internal laws of the State of California, without regard to any of its conflicts of laws principles that would require the application of the laws of another jurisdiction. If any Claim cannot be settled amicably between the parties, such Claim shall be tried by a court and not a jury. Customer expressly and unconditionally waives its rights to a jury trial in any such Claim. Notwithstanding the foregoing, Talis’s right to institute or defend any proceeding in any jurisdiction, in or out of the United States of America, shall not be limited.
- Customer may not change, adulterate, obscure, remove, or deface trademarks, tradenames, or labels appearing on any product sold by Talis under the Agreement. Customer agrees to maintain confidentiality of pricing, performance of the products, content, and protocols. Neither party will use the other party’s name, trademarks, or disclosure in any press release unless the other party agrees in writing.
- Any knowledge or information that Customer may disclose to Talis shall not be deemed to be confidential or proprietary information and shall be acquired by Talis free from any restriction.
- If any of the provisions of these terms and conditions is deemed invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will in no way be affected or impaired thereby.
- ANY ERROR OR OMISSION IN THESE TERMS OF SALE OR ANY QUOTATION, CATALOG, SALES LITERATURE, INVOICE OR OTHER DOCUMENT ISSUED BY TALIS SHALL BE SUBJECT TO CORRECTION BY TALIS WITHOUT LIABILITY TO TALIS.
- For so long as Customer abides by the terms of its Agreement with Talis, Talis hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, limited right and license to access and use software made available to Customer by Talis in connection with the use of the Equipment, unless such software is sold by Talis as an upgrade or separate product. Customer shall not copy, decompile, modify, reverse engineer, or create derivative works out of any Talis products or confidential information under any circumstances.
- Customer may terminate this Agreement, at any time, without cause, for any reason upon ninety (90) days written notice to Talis, subject to Talis’s right to a cash payment by Customer in an aggregate amount equal to the purchase price under the Agreement for all unpurchased Consumables remaining on Customer’s Annual Purchase Obligation. At the time of termination, all payments must be current, including any invoices pertaining to Consumable purchase shortfalls in relation to Customer’s Annual Purchase Obligation, and all outstanding amounts due under any financing agreements Customer has entered for Equipment shall be due immediately. In addition, either party may terminate this Agreement if the other party commits a material breach of this Agreement and the notice of the breach is not cured within thirty (30) days after the receipt of such notice (or, if such breach, by its nature, is a curable breach that is not curable within such thirty (30) day period, in the event the breaching party does not initiate diligent efforts to cure such breach within such thirty (30) day period and thereafter diligently pursues such cure). If Talis terminates this Agreement under this Section due to a breach of the Agreement by Customer, Customer is still obligated to pay the applicable fee for unpurchased Consumables and outstanding amounts due under any financing agreements as set forth above. In the event of any expiration or termination of this Agreement, Sections 6, 7, 9-12, and 14-15 shall survive.
- If either of the Parties is delayed or prevented from fulfilling any of the obligations under this Agreement due to a Force Majeure event (as described hereinafter), such party shall not be liable under this Agreement for such delay or failure. “Force Majeure” shall mean an event beyond the reasonable control of a party including, but not limited to, acts of God, vandalism, wars, strikes, civil unrest, rebellion, blockades, foreign currency exchange rates, transportation disruptions, telecommunication failures, lighting, fires, floods, pandemics, epidemics, government acts, explosions, or hurricanes. It also includes the inability to provide Third-Party Product when Talis’s supplier fails to fulfill a purchase order or otherwise deliver product for a reason outside the reasonable control of Talis. The party claiming a Force Majeure situation shall promptly notify the other party by written notice providing the reason for the delay and the length of time that the performance may be delayed. Neither party to this Agreement shall be deemed to be in default by reason of delay or failure due to Force Majeure.
16. Training and Technical Support. Talis will provide Customer training in accordance with its then current training program, which may include introductory training on-site, live virtual training, and prerecorded training materials. Introductory training shall be at no additional fee. Customer may request additional training services for an additional fee. Technical support is provided for all products purchased directly from Talis. Technical Support can be contacted by calling (855) 956-3594, Monday through Friday (except holidays), faxing (650) 618-8656, or e-mailing email@example.com.
17. Order Placement
- Purchase Orders. Customer must submit firm written purchase orders for products to Talis. Talis accepts standing orders, blanket orders and one-time orders. No verbal orders, changes or corrections will be accepted. Customer shall be responsible to Talis for the accuracy of all orders. To place a purchase order, please call Talis’s Customer Service at Customer Service (855) 956-3594, Monday through Friday (except holidays). Telephone orders must be confirmed in writing via fax or mail. Orders or order confirmations can be placed at any time via fax to (650) 618-8656. For electronic orders, please e-mail firstname.lastname@example.org. Customer agrees to submit such purchase orders in an efficient and orderly manner (e.g., generally aggregating Customer’s internal orders for products throughout any weekly period and then submitting a purchase order to Talis for such products on a once per week basis to the extent practicable). To the extent applicable, Talis retains the right to require purchases to be made in case quantities. When placing an order, please provide account name, Talis account reference number (if known), product name and item number, quantity, price, shipping instructions, customer contact name and telephone/fax numbers.
- Order Acceptance. No order shall be binding upon Talis unless and until accepted by Talis in writing.
- Order Cancellation. Customer shall not be entitled to revoke or cancel any purchase order after acceptance by Talis without Talis’s written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. Talis may cancel or terminate all or part of any order immediately if Customer is materially delinquent on any of its obligations hereunder or under any other order or transaction with Talis; Customer becomes insolvent; a receiver under Title 11 U.S.C., as amended (the “Bankruptcy Code”) is appointed for or on behalf of Customer, or a case under any chapter of the Bankruptcy Code is commenced for, by or against Customer; Customer suspends or terminates business or makes an assignment for the benefit of creditors; or any event occurs, whether or not similar to the foregoing, which in Talis’s good faith belief materially impairs the prospect of payment or performance by Customer hereunder. Talis’s rights to cancel or terminate may be exercised by Talis without liability.
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