MeMed Products Evaluation Terms

These MeMed’s Products Evaluation Terms (“Terms”), and any MeMed US, Inc. (“MeMed”) written quotation or proposal prepared by MeMed specifically for you referencing these Terms 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. 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.    Product.

“Products” means: the MeMed Key™ product (including its hardware and software) (“MeMed Key”), and MeMed BV™ products (including its ancillary calibrators and external controls), which are consumable products for use with the MeMed Key (“BV Consumables”), provided to Company subject to the terms of this Agreement. The MeMed Key shall be installed by MeMed at Company’s premises located at the site stated in the Quotation (the “Site”). 
2.    Authorized Use.

THE PRODUCTS ARE DESIGNED FOR IN VITRO DIAGNOSTIC USE ONLY, AND ARE NOT FOR IN VIVO OR THERAPEUTIC OR CLINICAL USES, OR FOR CONSUMPTION BY HUMANS OR ANIMALS. Company 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 applicable national and international ethical bodies. Company acknowledges that MeMed is not engaged in rendering medical advice or services, and that results from Products are not intended in any manner to substitute any professional medical advice or treatment from a trained healthcare professional. Customer acknowledges that MeMed is not responsible for any clinical decisions that are made with respect to results from use of Products. Company’s failure to comply with any applicable IFU constitutes its material breach of this Agreement. Only MeMed may authorize and carry out Product recalls, and Company will cooperate with MeMed in such efforts at its reasonable request. Company must promptly inform MeMed of all complaints or adverse effects caused by Products. Company is solely responsible for its use of the Products, and must obtain all necessary approvals and permissions. It is Company’s responsibility to make sure the Products are suitable for its particular use.
3.    Use Rights.

Company may use Products solely at the Site and only in accordance with the terms of this Agreement, for the sole purpose of evaluating whether or not to it wishes to purchase Products from MeMed (the “Evaluation”). The Evaluation period is limited to the period stated in the Quotation (“Evaluation Period”). At its discretion, MeMed shall either collect the MeMed Key and all unused BV Consumables, OR Company shall return such Products to MeMed in accordance with MeMed’s instructions, in either case within five (5) business days of the close of the Evaluation Period (“Return Date”). If Company does not return all Products, or allow MeMed to collect them, by the Return Date, then: (i) MeMed may assess a lease payment of USD $2,000 for each 30-day period of delay (prorated daily), up to 120 days; and (ii) if Company does not return any Product within 120 days of the Return Date, then MeMed may also invoice Company for the full list price of such Product. Company will pay invoices upon receipt. 
4.    Prohibited Uses.

Company shall 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) publish any data, reports or statistics concerning the accuracy of Products or services, including any benchmarking against other assays or diagnostics of any nature, (vii) 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.
5.    Proprietary Rights.  

As between the parties, MeMed exclusively owns and reserves all intellectual property rights relating to, covering, claiming, included and/or embodied in, Products. The provision of Products grants Company only a limited, nontransferable right under MeMed’s intellectual property only for the specific intended use of the Products strictly in accordance with this Agreement. Company will not modify, change, remove, cover or otherwise obscure any trademarks, logos, trade or service marks on Products. Company hereby assigns to MeMed all right, title and interest in and to all feedback, suggestions, ideas, improvements and other comments provided by Company to MeMed relating to Products (“Feedback”), and MeMed has the unrestricted right to use and disclose Feedback without duty or obligation or accounting to Company, and any improvements, modifications and changes made based on Feedback are MeMed’s exclusive property. The MeMed Key may include an electronic end user license agreement that users must electronically accept before installing, and/or using it (“EULA”). If a user acting on Company’s behalf or for its benefit accepts the EULA, then the terms of the EULA are incorporated by this reference into this Agreement. 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.
6.    Product Ownership & Liability. 
6.1.    Title to the Products remains with MeMed at all times. The Products are loaned to Company (except that Company may consume the BV Consumables), strictly during the Evaluation, and are not sold. Company is liable for any loss, theft, destruction or damage to the Products in its possession (other than for reasonable wear and tear resulting from normal use). If Company does not return Products to MeMed in accordance with Section 3, MeMed may take immediate possession of any or all Products wherever found upon notice to and free from all claims by Company.  Company will protect and defend MeMed’s title to the MeMed Key and will keep the MeMed Key free and clear from claims, liens, encumbrances and legal processes.  MeMed may display notice of its ownership on Products, and Company will not alter, obscure or remove such notices.  
6.2.    Company shall: (i) allow MeMed personnel access (include remote access as applicable) and right to initially install the Products at the Site and to provide on-going support; (ii) appoint qualified personnel to provide MeMed with any required documentation, information and technical assistance to enable successful integration and use of the Products; (iii) treat the Product with the same degree of care it does with its own proprietary products, and in no event less than reasonable care; and (iv) deliver results of the Evaluation to MeMed within 30 days of completion of the Evaluation (such results are MeMed’s Confidential Information).
7.    Disclaimers.

COMPANY ACKNOWLEDGES THAT PRODUCTS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY, AND THAT MEMED DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. THE RISK ARISING OUT OF USE OF PRODUCTS REMAINS SOLELY WITH COMPANY. COMPANY’S SOLE RECOURSE IN THE EVENT OF ANY DISSATISFACTION WITH A PRODUCT IS TO STOP USING IT. COMPANY IS RESPONSIBLE FOR ANY USE OF THE PRODUCT AND FOR VERIFYING ANY OUTPUT RESULTING FROM USE OF THE PRODUCT IF COMPANY INTENDS TO USE OR RELY ON SUCH OUTPUT.
8.    Limitations of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) MEMED, ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS AND/OR EMPLOYEES, SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, OF FOR LOSS OR DAMAGE TO BUSINESS, LOST PROFITS, GOODWILL OR DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, EVEN IF MEMED IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) MEMED’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING OTO THIS AGREEMENT SHALL NOT EXCEED FIVE HUNDRED DOLLARS ($500).
9.    Confidentiality.

All information disclosed by either party (“Disclosing Party”) to other party (“Receiving Party”), in connection with this Agreement and prior to or during the Term, whether in writing, orally or in any other form which is not in the public domain (“Confidential Information”), shall be held in absolute confidence, and Receiving Party shall take all reasonable and necessary safeguards (affording the Confidential Information at least the same level of protection that it affords its own information of similar importance but in no event less than reasonable care) to prevent the disclosure of such Confidential Information to third parties, and shall not use the Confidential Information for any purpose other than to perform this Agreement. In addition, Receiving Party will limit its disclosure of Confidential Information to its employees with a “need to know” and only in the context of such employees’ fulfillment of their duties under this Agreement and only to such employees who are bound by obligations of confidentiality at least as restrictive as those imposed on Receiving Party in this Agreement, and Receiving Party shall be fully liable for any breach of this Agreement by such employees. The provisions of this Section 9 shall survive the Term. If the Receiving Party is required by a government body or court of law to disclose Confidential Information, the Receiving Party shall provide the Disclosing Party reasonable advance notice and shall limit such disclosure only to the extent required. Each party agrees that the wrongful disclosure of Confidential Information may cause irreparable injury that may be inadequately compensable in monetary damages. Accordingly, and notwithstanding Section 14, either party may seek injunctive relief in any court of competent jurisdiction for the breach or threatened breach of confidentiality.
10.    Term and Termination.

This Agreement commences on the Effective Date and expires upon expiration of the Evaluation Period, unless earlier terminated by Company upon written notice to MeMed or due to Company’s use of the Product for purposes other than the Evaluation and/or any other failure of Company to comply with any provision of this Agreement (“Term”). Upon the expiration or termination of this Agreement: (i) Company shall return Products to MeMed per Section 3 and return to MeMed or destroy (at MeMed’s discretion) all copies of MeMed’s Confidential Information; and (ii) MeMed shall destroy all copies of the Company’s Confidential Information. Company shall not, under any circumstances, withhold any Product for any reason. 
11.    General.

Company may not assign or transfer this Agreement and any rights and obligations hereunder. Each Product and any related technology, including related technical information (such as those contained in product documents) (collectively “Items”), is subject to U.S. government export controls and Company must comply with such and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item.  All remedies are non-exclusive, and without prejudice to any other remedy available to MeMed, in equity, contract and/or in law. MeMed may assign this Agreement and/or any of the rights hereunder in its discretion. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable and such reform shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. In addition to Company’s obligation to return Products pursuant to Section 2, the following Sections survive expiration or termination of this Agreement: 5, 6, 8, 9, 10, 11 and 12. The Agreement and performance under it will be governed by the laws of Massachusetts, 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 heard exclusively in the state and federal courts located in Boston, Massachusetts, which courts have exclusive jurisdiction over all disputes relating hereto. The U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded. MeMed’s failure to exercise any rights under the Agreement is not a waiver of its rights to damages for Company’s breach of contract and is not a waiver of any subsequent breach. No waiver, consent, modification, amendment or changes to the terms of this Agreement will be binding unless in writing and signed by both parties. 
MeMed US Inc.
Address: 200 Brickstone Square, Suite 106, Andover, MA 01810