EU Terms & Conditions of Sale
EU Terms & Conditions of Sale
Thank you for purchasing products and services from MeMed Diagnostics Ltd. (“MeMed”, “we”, and “us”). Unless otherwise agreed in writing by us, your purchase, use, loan or lease of MeMed products (“Products”) and your purchase of MeMed services (“Services”), and our supply of Products and provision of Services to you, are exclusively subject to these terms and conditions (“Terms”).
MeMed may, at its sole discretion, change or modify the Terms at any time, with or without notice. Such changes or modifications shall become effective upon posting of the modified Terms to this web address.
1. Contract Terms. These Terms, and any MeMed written quotation or proposal prepared by MeMed specifically for you referencing these Terms (each a “Quotation”), and the other MeMed documentation referenced in these Terms, together comprise the entire contract between you and MeMed (“Agreement”), and supersede all other representations and understandings between the parties, whether written or oral, with respect to the subject matter of these Terms. Your purchase order or other order for Products or Services (each an “Order”) constitutes your commitment to purchase the Products and Services identified therein. The terms of your Order (other than the Products and Services identified therein) do not form a part of this Agreement and are rejected by both parties, and have no force or effect. By ordering Products or Services from us or from an Authorized MeMed Reseller, you accept and are bound by these Terms. This Agreement is created when we accept your Order, either by sending a written confirmation or by shipping the ordered Product(s) or performing the ordered Service(s). In the event of a conflict among documents, these Terms take precedence over a Quotation (unless such Quotation expressly identifies a specific provision within these Terms that is superseded by such Quotation, in which case the provision within the Quotation shall take precedence over the conflicting provision within these Terms solely for purposes of such Quotation), and an agreement signed by both parties takes precedence over a Quotation and these Terms. However, if you purchase or lease Products, or purchase services, from an authorized MeMed reseller or distributor (each an “Authorized Distributor”), then, notwithstanding anything to the contrary herein, all credit, invoicing, payment, shipment, delivery, returns, lease, warranty, warranty claims, warranty remedies, ordering and cancelation terms applicable to your transaction will be only as agreed between you and the Authorized Distributor and not as set forth herein, and MeMed has no responsibility, obligation or liability with respect to your business with Authorized Distributors, but your obligations to MeMed under Sections 6 (Authorized Use; Regulatory; Restrictions on Use), 7 (Software), 9 (Confidentiality), 14 (Your Indemnity), and 18 (Export Restrictions) and all of MeMed’s rights under these Terms and Conditions, apply to you and to MeMed. Any claims or allegations of loss, liability, damage, injury or harm must be brought by you only against the Authorized Distributor and not against MeMed, and to the maximum extent permitted under applicable law, you hereby waive and release MeMed from and against any such claims or allegations.
2. Prices, Taxes, and Fees.
2.1. Pricing in our Quotation is valid for 30 days unless stated otherwise therein (and thereafter may be changed at any time without notice), but such pricing is subject to adjustment based on changes to specifications, quantities, raw materials, cost of production, shipment arrangements or other items that are not part of the original Quotation. If no price has been quoted to you in writing, the price is the MeMed list price in effect at the time we accept your Order.
2.2. Prices are stated exclusive of taxes (including VAT), duties, levies or other government fees that may apply to your Order. If they apply, it is your responsibility to pay them. If we pay them, we will add them to your invoice. In the case of VAT, the price will be grossed up for VAT and we will provide a standard VAT invoice. If you claim any exemption, you must provide a valid, signed certificate or letter of exemption for each applicable jurisdiction no later than sending your first Order. You are responsible for standard delivery and handling charges.
3.1. Unless otherwise described in a Quotation, you will pay invoices within 30 days of receipt of invoices. You will pay all invoices without withholding, discount, setoff or reduction. Each Order is a separate transaction, and you may not off-set payments from one order against another. We reserve the right to require you to make full or partial payment in advance, or other security to our satisfaction, if we believe in good faith that your financial condition does not justify the payments terms otherwise specified. You will make all payments in U.S. Dollars, and payments are not refundable.
3.2. If you are late in making payment, we may, without limiting our other rights: (i) suspend deliveries of Products and/or performance of Services, or terminate your Order and this Agreement; (ii) reject your Orders; and/or (iii) charge you a late-payment fee, from the due date until paid, at the rate of 1.5% per month, or, if less, the maximum amount allowed by law, which you must pay upon our demand. If we appoint a collection agency and/or an attorney to recover unpaid amounts, you will pay our costs of collection, including reasonable attorneys’ fees.
4. Delivery; Cancellation; Changes.
4.1. Unless otherwise described in a Quotation, we will ship Products to the destination you specify in your Order, FCA (INCOTERMS 2020) our shipping point, with our selected freight carrier. We may, in our discretion, make partial shipments and invoice each shipment separately. Our shipping dates are approximate only, and we are not liable for any loss or damage resulting from any delay in shipping or delivery. If we delay shipment for a cause beyond our reasonable control, we may terminate the affected Order or reschedule the shipment within a reasonable period of time. You may not refuse delivery or otherwise be relieved of any obligations as the result of a delay. If our delivery is delayed due to any cause within your control, we will place the delayed Products in storage at your risk and will invoice you at our then-current storage rates.
4.2. Once you have placed your Order, you cannot cancel or change it unless we consent in writing, in which case you will pay cancellation charges or an adjustment in the purchase price, as specified by us. You may not return Products or terminate Services without our prior written consent.
4.3. Any claims against us for shipment shortages or Product damage, that could be discovered by inspection upon receipt must be made within five (5) days of your receipt of shipment.
5. Risk of Loss and Title. Products are considered delivered when we load them onto the commercial carrier at origin. At this point, you are responsible for risk of loss and damage, and title to purchased Products will pass to you (except for software incorporated within a Product, which we and our licensors exclusively own), however, you hereby grant to MeMed a security interest in such Products to secure the payment therefor, and irrevocably authorize MeMed at any time to make any filings necessary or advisable to perfect its security interest, , and you will furnish any information reasonably required to file such financing statements or amendments, or to perfect MeMed’s security interest, and execute all related documents, promptly upon request. If we take action to repossess Products in accordance with our rights, you will pay our costs in doing so, including reasonable attorneys’ fees.
6. Authorized Use; Regulatory; Restrictions on Use.
6.1. MEMED’S IN VITRO DIAGNOSTIC PRODUCTS ARE DESIGNED FOR IN VITRO DIAGNOSTIC USE ONLY, AND ARE NOT FOR IN VIVO OR THERAPEUTIC USES, OR FOR CONSUMPTION BY HUMANS OR ANIMALS. You must use, maintain and dispose of Products, as well as any results or information generated from such Products, in accordance with the Instructions for Use (“IFU”), product documentation, and any other MeMed documentation accompanying such Products, and in accordance with all applicable law and regulation (including disposal rules), and ethical guidelines promulgated by established national and international ethical bodies. We are not engaged in rendering medical advice or services, and results from our Products and Services are not intended in any manner to substitute any professional medical advice or treatment from a trained healthcare professional. We are not responsible for any clinical decisions that are made with respect to results from use of our Products and Services. Your failure to comply with any applicable IFU constitutes your material breach of this Agreement. Only we may authorize and carry out Product recalls, and you will cooperate with us in such efforts at our reasonable request. You must promptly inform of us all complaints or adverse effects caused by our Products or Services. You are prohibited from publishing any reports or statistics concerning the accuracy of our Products or Services, including any benchmarking against other assays or diagnostics of any nature.
6.2. You may not (i) disassemble, reverse engineer, reverse compile, or reverse assemble a Product, or make any modifications to a Product, (ii) separate, extract, or isolate components of a Product or engage in other unauthorized analysis of a Product, (iii) gain access to or determine the methods of operation of a Product, (iv) take any action to determine any characteristic and/or composition or structure of a Product, (v) attempt to gain unauthorized access to a Product, (vi) access or use a Product to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or interfaces, or (c) copy any ideas, features, functions or interfaces of the Product; (vi) use Products for any time sharing, leasing or service bureau purposes or permit use by anyone other than your employees and agents and/or (vii) aid or permit others to do any of the foregoing.
6.3. You are solely responsible for your use of Products and for making sure that the way you use Products complies with applicable laws, regulations and governmental policies. You must obtain all necessary approvals and permissions you may need to use the Products. It is your responsibility to make sure the Products are suitable for your particular use.
6.4. You may only use the MeMed Key™ Product (“MeMed Key”) within your place of business and at the premises, facility, or address identified in the Quotation (“Facility”). You may not move the MeMed Key to any other location without MeMed’s prior written consent, and you acknowledge that moving the MeMed Key may affect or void its warranty, as described more fully in the Warranty (defined below). You may not make any modifications or alterations to any Product or component thereof. You may not alter, obscure or remove any identification of ownership or other MeMed marking on any Products. You may not resell or distribute Products.
7. Software. We may make software available to you for use in connection with the MeMed Key, in which case you acknowledge you are receiving licensed rights only, and that software is licensed and not sold, and that, as between you and us, we own all rights to the software and all related documentation and physical media, and all copyright, trade secret, patent, trademark and other intellectual or industrial property rights therein. Ideas and expressions contained in our software are our confidential, proprietary information and trade secrets. We grant you a nonexclusive, non-transferable, non-sublicensable, personal license to use only one copy of the software on the MeMed Key, without making any copies. We may terminate this license if you fail to comply with this Section 7 or otherwise breach this Agreement, in which case you must destroy all software-related documentation in your possession or control. You may not, directly or indirectly, or authorize any person or entity to: (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the software or its structural framework; (ii) create derivative works of the software; (iii) use the software for any purpose except for use with the MeMed Key; (iv) copy, loan, publish, transfer, or disseminate the software or related documentation; (v) disable or circumvent any access control or related device, process or procedure established with respect to the software; or (vi) use the software for any benchmarking or competitive purposes. You acknowledge you have been provided sufficient information such that you do not need to reverse engineer software in order to permit other products or information to interoperate with the software. You may not remove or alter any trademark, copyright, patent, or other proprietary rights notices or legends from the software. You must ensure the confidentiality and security of each Software user account ID and password, and you acknowledge that responsibility for all data submitted by or on your behalf to the MeMed Key lies solely with you. Our software may include or be accompanied by an electronic end user license agreement that users must electronically accept before installing, updating, registering for, and/or using the software, which we may update from time in accordance with the terms of such agreement (such license agreement, and any other user interface documents included within the software, are collectively the “EULA”). If a user acting on your behalf or for your benefit accepts the EULA, then the terms of the EULA are incorporated by this reference into this Agreement and form a part of this Agreement, and are binding upon you. Any breach by your user of the EULA shall be deemed to have been a breach by you. Products acquired for use within or for any United States federal agency are provided with “LIMITED RIGHTS” and “RESTRICTED RIGHTS” as defined in DFARS 252.227-7013 and FAR 52.227-19.
8. Services. We may provide you with certain support Services, in which case we will do so in accordance with the service level documentation identified in the applicable Quotation.
9.1. “Confidential Information” means all information disclosed or provided by either party to the other party pursuant to or in connection with this Agreement, whether communicated in writing, electronically or orally, or by any other method. Notwithstanding the foregoing, Confidential Information shall not include information that the receiving party can demonstrate through sufficient written records (i) is, as of the date of disclosure, known to the receiving party without obligation of confidentiality to the disclosing party; (ii) is, as of the date of disclosure, in the public domain or subsequently enters the public domain through no fault of the receiving party; or (iii) is obtained by the receiving party from a third party having a lawful right to make such disclosure free from any obligation of confidentiality to the disclosing party. Quotations and Product documentation constitute MeMed’s Confidential Information.
9.2. Confidentiality Obligations. Each party will hold the other party’s Confidential Information in confidence and will not disclose such Confidential Information to any third party, and will not use such Confidential Information except to perform this Agreement. However, the receiving party may disclose the disclosing party’s Confidential Information to the extent required to comply with applicable laws provided the receiving party notifies the disclosing party of such requirement upon being made aware thereof and reasonably cooperating with the disclosing party’s efforts to obtain confidential treatment or a protective order with respect to any such disclosure, at the disclosing party’s request and expense.
10. Loaned Products.
10.1. For each Product identified in a Quotation as leased, rented, loaned or placed (“Loaned Product”), we lease, rent or loan such Loaned Product to you subject to the terms of this Agreement and for the lease, rental or loan term identified in such Quotation. You may not sublet or lend any Loaned Product, or permit any Loaned Product to be used by anyone other than your employees and agents. You must maintain a service contract with us at all times during the loan period and you must store Loaned Products properly and in accordance with MeMed’s instructions from time to time.
10.2. Title to Loaned Products remains with us at all times and you have no right, title or interest therein except as expressly set forth in this Section 10. You will protect and defend our title to Loaned Products and will keep Loaned Products free and clear from third party claims, liens, encumbrances and legal processes, and will furnish any information reasonably required to file financing statements or amendments, or to perfect MeMed’s security interest, regarding Loaned Products, and execute all related documents, promptly upon request.
10.3. We may, upon reasonable prior notice to you and during regular business hours, inspect each Loaned Product at the Facility or wherever such Loaned Product is located. You must promptly notify us of all details arising out of any removal of a Loaned Product from the Facility, any alleged encumbrances on any Loaned Product, and any damage or injury allegedly resulting from the use or operation of a Loaned Product, and any claim relating thereto. Upon our request from time to time, you shall execute and deliver to us such instruments and assurances as we deem reasonably necessary for the confirmation or perfection of our rights to Loaned Products, including but not limited to financing statements. You must promptly notify us of any change in your corporate or business name or the location of its principal office. You shall pay to us, on demand, all costs, including reasonable attorneys’ fees and court costs, incurred by us in enforcing the terms and conditions of the lease of Loaned Products.
10.4. You bear the risk of a Loaned Product being lost, stolen, destroyed or rendered unfit or unavailable for use from any cause whatsoever (“Event of Loss”) after delivery to you, and you shall notify us promptly upon any Event of Loss, and shall pay us an amount equal to the full replacement cost of such Loaned Product, as quoted by us (“Replacement Cost”). Upon receipt of the Replacement Cost, we will use commercially reasonable efforts to replace a Loaned Product that is the subject of an Event of Loss. For the avoidance of doubt, your obligation to make lease or rent payments (if any) for a Loaned Product is not suspended during an Event of Loss.
10.5. We may terminate your lease or loan if an Event of Loss is due to your negligence, misconduct or breach of this Agreement, as determined by us. We may terminate your lease or loan if you breach this Agreement and do not cure the breach within ten (10) days of our notice. Upon expiration or early termination of the lease or loan term, you will deliver each Loaned Product to us, at your expense, in accordance with our instructions.
11. Data. We encourage you to download and backup all data that you may store on our Products. To the extent and as permitted by applicable law, we may monitor, collect and analyze data based on your Product use and Product performance to optimize and improve our Products and services and for business and data analytics purposes, and we may disclose the same provided that in connection with such disclosure, such data is de-identified or anonymized in accordance with applicable laws, is aggregated, and does not directly or indirectly identify individual patients or subjects, health care providers, or other entities, and such data shall not be identified as originating from you. Such data, and all technology, products and information based on such data, is exclusively owned by MeMed. Prior to delivering the MeMed Key to us for diagnostic, repair, or other services, you must backup and delete all data, software, information and other files stored on the MeMed Key, and you must delete all personal data from the MeMed Key, all in accordance with the applicable product documentation and instructions or as instructed by our customer service team. We may request your MeMed Key logs to support or service the MeMed Key (including to perform Warranty services), in which case you acknowledge that our ability to provide such support or service depends upon access to these logs. We are not responsible or liable to you under any circumstance for any loss, damage or corruption of data stored on our Products, even when those Products are within our possession or control, except as required under applicable law, and you understand and acknowledge that repair services may result in damage to, or removal or destruction of, data, including, but not limited to, configuration, archives, files, programs, and documents. If you make Products available to us for repair or service, you authorize us to reformat any Product storage device, including hard drives if, in our judgment, such reformatting is reasonably necessary.
12. Limited Warranty and Disclaimers.
12.1. We warrant that the MeMed Key, when used in accordance with the documentation accompanying its delivery to you (including any IFU), shall substantially conform to such documentation for twelve (12) months from shipment (“Key Warranty”). The Key Warranty is void if the MeMed Key is moved from the Facility without MeMed’s prior written consent. We warrant that consumable Products, such as MeMed BV® or MeMed COVID-severity® consumables (“Consumables”) shall substantially conform to such documentation accompanying their delivery (“Consumables Warranty”). The Consumables Warranty for each Consumable is effective during the shelf life or through the expiration date identified in such documentation. For all Products other than the MeMed Key and Consumables, we warrant that such Products shall, at the time of release for shipment, substantially conform to the documentation accompanying them (“Default Warranty”). The Key Warranty, Consumables Warranty and Default Warranty are each a “Warranty”.
12.2. Any attempt to open the MeMed Key or a MeMed BV product is a breach of these Terms and voids the applicable Warranty. Warranties do not cover, and MeMed has no responsibility, liability or obligation with respect to: (a) normal wear and tear, including chemical corrosion or decomposition; (b) accident, disaster or event of force majeure; (c) your fault or negligence or use of the Product other than as expressly permitted herein, or use in contravention of its documentation, including any IFU; (d) causes external to the Products such as, but not limited to, power failure or electrical power surges; (e) Products sold to you as ‘used’ products; (f) installation, removal, use, maintenance, storage, or handling in an improper, inadequate, or unapproved manner by you or any third party (including the carrier), such as, but not limited to, failure to follow our instructions or operating guidelines, or protocols, operation outside of stated environmental or use specifications, or operation or contact with unapproved software, materials, chemicals or other products; or (g) Products customized in accordance with specifications you gave us. ADDITIONALLY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, A PRODUCT PERFORMED BY ANY PERSON OR ENTITY OTHER THAN MEMED OR AN AUTHORIZED MEMED RESELLER WITHOUT MEMED’S PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS MEMED HAS NOT SUPPLIED, WILL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS.
12.3. To make a Warranty claim, you must notify our customer support team at firstname.lastname@example.org during the applicable warranty period, and then follow our instructions with respect to return of the defective Product. For Products that we reasonably determine, using analytical methods specified by us, do not meet the Warranty, we will, at our option and sole discretion, either repair or replace such Products, or credit the price you paid for such Products against future Orders.
12.4. The Warranties extend to only the original purchaser. The remedies identified in this Section 13 are your sole and exclusive remedies, and our only liabilities, under each Warranty. However, issues relating to Loaned Products may also be handled in accordance with our Loaned Product service and support policy, as referenced in the applicable Quotation. If we determine that Products for which you requested Warranty services are not covered by the Warranty, you will pay all costs of investigating and responding to such request at our then prevailing time and materials rates.
12.5. If we provide third party products to you at no charge, then, notwithstanding anything to the contrary herein, we do not make any guarantees, warranties or representations regarding such products or their performance, and we do not repair such products, and they are provided to you AS IS and for use AT YOUR OWN RISK, and they are not covered by our indemnification obligations in Section 13. If you have any questions or issues relating to these products, you must contact the original manufacturer directly.
12.6. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WARRANTIES DESCRIBED IN THIS SECTION 12, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO PRODUCTS, SOFTWARE, INFORMATION AND SERVICES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR RELATING TO CUSTOM, USAGE OR TRADE. WE DO NOT WARRANT THAT PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT. WE DO NOT WARRANT THAT SOFTWARE CAN OR WILL BE CORRECTED, OR THAT PRODUCTS ARE COMPLETELY SECURE. Without limiting anything else herein, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from this Agreement. You acknowledge that you are responsible for your use of our Products and Services, including reliance upon results from such use, and that you will use professional care and judgment in using our Products and Services and relying upon results. You agree that you are not purchasing or leasing any Product or Service from us in reliance upon any representation or warranty not specifically set forth in this Agreement, nor on the completion of the representations and warranties set forth herein or in any document or instrument referred to herein.
13. MeMed Indemnity.
13.1. We will defend and indemnify you against infringement damages finally awarded to a third party in any legal action brought by such third party against you to the extent that the action alleges that our manufacture and sale of a Product, or that our software, sold, leased or licensed to you, infringes any United Kingdom patent, registered copyright or trademark of such third party. This indemnity does not apply to claims based on (i) your failure to comply with this Agreement, (ii) your failure to acquire any applicable rights from third parties, (iii) Products (including software) that we make, assemble or label in reliance upon your instructions, specifications, or other directions, (iv) your use of Products (other than software products), (v) Product or software modifications made by you or any third party; (vi) Products or software originating from third parties that are not authorized MeMed dealers; (vii) your failure to install software updates provided by us; (viii) your use of our software other than as permitted herein; (ix) your use of Products, software or Services in combination with non-MeMed information or items; or (x) your failure to follow our Product or software installation, calibration or maintenance instructions (each of (i) through (x) constitutes a “Prohibited Use”).
13.2. As a condition to any of our indemnification obligations you must (i) notify us in writing, as soon as you become aware of any indemnifiable claim; (ii) not admit any liability or take any other action in connection with the claim that could affect the defense; (ii) allow us to control the defense or settlement of the claim; and (iv) give us your reasonable information, co-operation and assistance. If we believe a Product that you have purchased may be subject to allegations of infringement or misappropriation, we may replace such Product with a substitute Product, at our own cost and expense, in which case you will return the original Product in accordance with our instructions.
13.3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PROVISIONS OF THIS SECTION 13 ARE OUR ONLY LIABILITY TO YOU, AND YOUR ONLY REMEDY, FOR ANY INFRINGEMENT OR MISAPPROPRIATION OR CLAIMED INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS BY OR IN CONNECTION WITH ANY PRODUCT, SERVICE OR SOFTWARE.
14. Your Indemnity. You will indemnify, defend with competent and experienced counsel acceptable to us, and hold us and our subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders, agents and employees, harmless from and against any and all damages, liabilities, causes of action, suits, claims, demands, losses, fines, penalties, costs and expenses (including without limitation reasonable attorneys’ fees) suffered or incurred by any of the foregoing entities or individuals arising from or in connection with (a) your negligence, misconduct, violation of applicable laws, breach of this Agreement, or noncompliance with the IFU; (b) your use of Products (except where such use is covered by our software indemnification obligation in Section 13.1); (c) a Prohibited Use; (d) your failure to acquire any applicable third party rights when using a Product; and (e) the reliance by any person or entity on any evaluation, analytic results or other data derived from our Products or Services. You are responsible for the actions of your employees, agents and representatives for purposes of this Section 14.
15. Intellectual Property. As between you and us, we exclusively own all intellectual property rights relating to, covering, claiming, included and/or embodied in, our Products, software and Services. Our license, sale, loan or lease of Products to you grants you only a limited, nontransferable right under our intellectual property only for the specific intended use of the Products you bought, licensed, borrowed or leased from us and strictly in accordance with and for the term of this Agreement. You will not modify, change, remove, cover or otherwise obscure any trademarks, logos, trade or service marks on Products. Nothing in this Agreement limits our ability to enforce our intellectual property rights. You may not use any MeMed trademark, trade name, trade dress or product name except to identify our Products and Services. Except as expressly permitted herein, no license or right, whether express or implied, is granted to any person under any MeMed patent, trademark or other proprietary right, and we reserve all rights. You hereby assign to us all right, title and interest in and to all feedback, suggestions, ideas, improvements and other comments provided by you to us relating to our Products and Services (“Feedback”), and we will have the unrestricted right to use and disclose Feedback without duty or obligation or accounting to you, and any improvements, modifications and changes made based on Feedback are our exclusive property. You are solely responsible for determining whether you have all third party intellectual property rights that are necessary for your use of Products and Services. You acknowledge that Products (including software) may constitute, contain or embody our Confidential Information and intellectual property rights, including trade secrets.
16. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MEMED WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE, THAT YOU OR A THIRD PARTY MIGHT INCUR UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH OUR PRODUCTS, INFORMATION, OR SERVICES, EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THIS SENTENCE WILL NOT LIMIT DAMAGES CAUSED BY OUR GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD. IN ADDITION AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, MEMED’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY PRODUCT OR SERVICE, IS LIMITED TO THE AMOUNT YOU PAID TO MEMED UNDER THE ORDER UNDER WHICH THE LIABILITY AROSE. HOWEVER, THESE PROVISIONS DO NOT LIMIT LIABILITY THAT CANNOT BE LIMITED BY LAW.
17. Termination. Without limiting our other available remedies, we may terminate your rights to use Loaned Products and/or software, and/or to receive Services, and we may terminate your Order, in the event of your breach of the Agreement, and as otherwise permitted herein. Termination will not affect the rights and obligations of the parties accrued prior to termination or expiration hereof, and Sections 6, 9, 10.5, 11, 12.4, 12.5, 13, 14, 15, 16, 18, 19, this sentence and your payment obligations will survive any such termination.
18. Export Restrictions. You acknowledge that each Product and any related technology, including technical information we supply you, including those contained in product documents (collectively “Items”), is subject to U.S. government export controls. The export controls may include, among others, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. You must comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item.
19. Miscellaneous and Force Majeure.
19.1. You may not delegate any duties nor assign any rights or claims hereunder, and any such attempted delegation or assignment will be void. We may assign, delegate or transfer this Agreement or our rights or obligations hereunder, in each case in our discretion. This Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with this Agreement.
19.2. The Agreement and performance under it will be governed by the laws of England & Wales, without reference to choice of law provisions, and all actions brought to enforce or interpret the Agreement and any all disputes hereunder or in connection herewith, including any negotiations relating thereto, shall be resolved exclusively by binding arbitration before the London Court of International Arbitration (“LCIA”) under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, United Kingdom. The language to be used in the arbitral proceedings shall be English. The U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded. IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT TO THE MAXIMUM ALLOWED BY APPLICABLE LAW.
19.3. We will not be responsible or liable for failing to perform our obligations under the Agreement to the extent such failure is caused by, or to the extent we cannot perform due to, circumstances beyond our reasonable control, including without limitation acts of God and nature, embargoes, war, acts of war (whether war be declared or not), terrorism, insurrections, riots, civil commotions, strikes, lockouts, or other labor disturbances, government actions, fire, earthquakes, floods, epidemics, pandemics (whether declared or not), and any actions we take to comply with applicable laws, directives, pronouncements or guidelines issued by a governmental entity relating to pandemics, such as quarantines and sheltering in place. In certain situations, we may use our reasonable judgment and apportion Products then available for delivery fairly among our customers, or may terminate your order without liability to you.
19.4. Our failure to exercise any rights under the Agreement is not a waiver of our rights to damages for your breach of contract and is not a waiver of any subsequent breach. If any provision or part of the Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Agreement. No person other than you or us will have any rights under the Agreement. This Agreement binds the parties’ successors and permitted assigns. Headings are for convenience only and shall not be used in the interpretation of these Terms.
19.5. Any notice or communication required or permitted under these Terms must be in writing and will be deemed received when delivered by commercial courier, or 3 business days after being sent by certified mail, postage prepaid, to a party’s specified address. Notices to MeMed must be sent to the attention of its General Counsel.
19.6. No waiver, consent, modification, amendment or changes to the terms of this Agreement will be binding unless in writing and signed by both parties. Our failure to object to terms contained in any subsequent communication from you is not a waiver or modification of this Agreement.
19.7. Nothing in this Agreement is intended to confer on any person any right to enforce any term of this Agreement which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999 (“Third Party Rights Act”). Any right or remedy of a third party that existed or is available apart from the Third Party Rights Act is not affected.