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General Conditions of Sale

for Life Whisperer

 

These are the exclusive General Conditions of Sale by FUJIFILM Irvine Scientific, Inc. ("Seller") to ("Buyer"), for the Buyer’s purchase and/or Trial of access rights to Embryo Viability Assessment and Embryo Genetics Assessment software licensed by Life Whisperer Diagnostics Pty Ltd. ("LW" or "OPL" as defined below) products and/or services (the "Products"), which shall together constitute and set forth the entire contract (the "Agreement") between the parties with respect to the purchase and sale of the Products. Products are NOT FOR RESALE without the express prior written approval of Seller.

Buyer acknowledges and agrees that Seller is a reseller of the Product, not the manufacturer or original Product licensor ("OPL"), and therefore Seller disclaims any warranty responsibility regarding Product provided under this Order. All warranties and other terms or conditions of Buyer's license to use the Product are set forth under the End User License Agreement between Buyer and OPL ("EULA"). Seller is not a party to the EULA or to any warranty terms between Customer and OPL and Buyer agrees to look solely to the OPL for satisfaction of any and all warranty claims related to that OPL's Product. EXCEPT AS OTHERWISE PROVIDED IN THIS ORDER, SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY WARRANTY PROVIDED BY OPL.

BUYER FURTHER ACKNOWLEDGES AND AGREES THAT THE PRODUCTS ARE A SOFTWARE APPLICATION FOR AID TO ASSESSMENT OF EMBRYO IMAGES AND GENETICS, INTENDED TO BE USED FOR CLINICAL DECISION SUPPORT TO AID IN THE SELECTION OF EMBRYOS DURING IN VITRO FERTILIZATION (IVF) PROCEDURES. THE PRODUCTS ARE NOT INTENDED TO BE USED, AND BUYER SHALL NOT USE THE PRODUCTS, AS DIRECT DIAGNOSTICS.

Acceptance

Upon receipt hereof, and subsequent access and/or use of the Products, Buyer will be deemed to have accepted and assented to these General Conditions of Sale, which represent the entire valid and binding Agreement between Seller and Buyer, and unless covered under separate written agreement signed by both parties, supersedes any and all prior understandings, agreements, representations, warranties, or other statements or promises, if any, which have been made by or to any of the parties in connection herewith. Seller will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) that Buyer proffers in any purchase order, receipt, acceptance, confirmation, correspondence, or other document that Buyer proffers as an acceptance of this Agreement, unless Seller specifically agrees to such provision in a written instrument signed by Seller.

Free Trial

If set forth on Seller’s quotation to Buyer, Buyer may have access to a no-charge Trial of the Products. All General Conditions of Sale set forth herein apply with respect to Buyer's Trial of the Products, except for Buyer's payment obligations during the limited Trial period. Buyer acknowledges and agrees that its access to the Trial of the Products constitutes good and sufficient consideration for the parties’ respective obligations set forth herein.

Pricing and Terms; Taxes; Credit Approval

Seller reserves the right to change prices without notice. Standard payment terms are NET 30 DAYS. A finance charge of 1.5% per month (annual percentage rate of 18%), or the highest rate allowable by applicable law, whichever is higher, determined and compounded on a daily basis from the date due until the dated paid, may be charged to past due accounts. Payment of such finance charges will not excuse or cure Buyer's breach or default for late payment. A condition of Seller’s obligation to deliver the Products or Services is its approval of Buyer’s credit and payment arrangements. If Buyer’s credit rating is not satisfactory to Seller, Seller may require shorter payment terms or payment in advance. Prices do not include any sales, use, value-added, withholding or similar taxes. Buyer will pay or reimburse Seller for all taxes or other amounts payable to governmental authorities in connection with the applicable transactions (other than Seller's net income taxes), or where applicable will provide Seller with an exemption certificate satisfactory to Seller.

Credit Card Orders

Upon Seller’s prior approval, Seller may accept VISA®, MasterCard® and American Express® as payment for order. If Buyer has provided Buyer's credit card or debit card for payment, Buyer hereby authorizes Seller to charge such credit card or debit card to obtain payment.

Delivery

Products are available for Buyer's access and use at https://app.lifewhisperer.com/login. Please contact lifewhisperer@fujifilm.com about region-specific versions of the application.

Excused Performance

Seller will not be responsible for or be considered to be in breach of or default under this Agreement on account of, any cause or event beyond Seller's reasonable control (including, but not limited to, Seller's inability, after due and timely diligence, to procure access to the Products by Buyer). Seller shall not be liable for any loss, damage or penalty as a result of any delay in or failure to make the Products available for Buyer’s use due to any cause beyond Seller's reasonable control.

Conditions and Intended Use

Buyer is solely responsible for ensuring that its use of a Product is compliant with Buyer's purpose(s). Buyer acknowledges and agrees that the Product, and any information provided by Seller, in no way replaces or substitutes for the professional judgment or skill of Buyer. Buyer accepts all risks arising from, and is solely responsible for, its professional and advisory services including but not limited to patient examination, diagnosis, prescription, treatment and personal injury or loss of life. Seller assumes no responsibility for actions of Buyer which may result in any liability or damages due to malpractice, failure to warn, negligence or any other basis.

Nothing disclosed herein is to be construed as a recommendation to use Products in violation of any patents or other intellectual property rights, laws or regulations. Product information provided to Buyer in the COA or other accompanying documentation is believed to be accurate, however, said Product information and Products are offered without warranty or guarantee since the ultimate conditions of use and the variability of use cases are beyond Seller's control. Seller is not responsible or liable for patent infringements or other violations of any law or regulation that may occur with the Buyer's use of the Products. Products are not to be used beyond the "expiration date" specified on a Product's label.

Express Warranty and Disclaimer of Other Warranties

Seller warrants that it has all necessary rights and authority to resell access to the Product to Buyer hereunder (subject to Buyer’s acceptance of the EULA between Buyer and OPL). Except for the foregoing warranty, SELLER MAKES NO OTHER REPRESENTATION, WARRANTY OR PROMISE OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE PRODUCTS OR SAMPLES OR SERVICES. SELLER DISCLAIMS AND EXCLUDES ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR WARRANTY OR CONDITION ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OR TRADE, STATEMENTS OF SELLER REPRESENTATIVES, OR SAMPLES PREVIOUSLY SUPPLIED. SELLER GIVES NO, AND DISCLAIMS ANY, WARRANTIES, UNDERTAKINGS OR SIMILAR TERMS WHATSOEVER IN RESPECT OF ANY ADVICE OR ASSISTANCE GIVEN BY SELLER IN CONNECTION WITH THE USE OF THE PRODUCT IN OR AS A DRUG PRODUCT (INCLUDING ADVICE OR ASSISTANCE RELATED TO ANY REGULATORY APPROVAL), AND SELLER SHALL HAVE NO LIABILITY TO THE CUSTOMER OR ANY OTHER PARTY IN CONNECTION WITH ANY SUCH ADVICE OR ASSISTANCE. SELLER GIVES NO, AND DISCLAIMS ANY, WARRANTIES, UNDERTAKINGS OR SIMILAR TERMS WHATSOEVER IN RESPECT OF ANY TRIAL USE OF THE PRODUCT BY BUYER.

Exclusive Remedy and Release of Other Liabilities

In the event of a breach of the foregoing warranty, Buyer shall notify Seller and Seller, in its sole discretion, shall either replace Buyer's rights to use the affected Product, or refund to Buyer the purchase price for the affected Product. THIS REMEDY SHALL BE THE EXCLUSIVE AND SOLE REMEDY OF BUYER FOR ANY BREACH OF WARRANTY. The warranties, obligations and liabilities of Seller and the remedies of Buyer set forth in this Agreement are exclusive, and BUYER HEREBY WAIVES, DISCLAIMS AND RELEASES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF SELLER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST SELLER express or implied, arising by law or otherwise, with respect to the Products and any other goods or Services delivered under this Agreement including, without limitation, any obligation, liability, right, claim or remedy in tort (including claims for Seller’s own negligence or strict liability) or for infringement.

Liability

Buyer acknowledges and agrees that: (i) the potential extent of liability arising from the Products are better known to Buyer than to Seller; (ii) the potential extent of such liability is disproportionate to the amounts which Seller can reasonably charge for the Products; (iii) Buyer is better able to, and should, insure against any liabilities Buyer might suffer, and (iv) consequently Seller should restrict its liability as set out in this clause and Buyer should indemnify Seller as set forth herein and the parties agree that nothing herein shall limit or exclude Buyer’s liability to Seller under those indemnities.

SAVE THAT NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES THE LIABILITY OF ANY PARTY TO THE OTHER FOR ANY LIABILITY THAT IS NOT PERMITTED TO BE LIMITED OR EXCLUDED BY LAW:

SELLER’S TOTAL LIABILITY, WHETHER OR NOT ARISING PURSUANT TO AN INDEMNITY, IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE ARISING UNDER THIS AGREEMENT SHALL IN ALL CIRCUMSTANCES BE LIMITED TO THE PRICE PAID FOR THE PRODUCTS OR SERVICES BY BUYER HEREUNDER; AND

UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR: LOSS OF PROFIT; LOSS OF BUSINESS; DEPLETION OF GOODWILL; LOSS OF ANTICIPATED SAVINGS; LOSS OR CORRUPTION OF DATA OR INFORMATION; OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR ECONOMIC OR OTHER LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES, INCLUDING THE COSTS OF ANY RECALL OF THE PRODUCT.

SELLER SHALL HAVE NO LIABILITY TO BUYER OR ANY OF ITS CUSTOMERS IN CONNECTION WITH SAMPLES OR THE USE BY BUYER OR ANY OF ITS CUSTOMERS OF SAMPLES.

Indemnity

Buyer shall indemnify and hold harmless Seller and its directors, officers, employees, agents, affiliates and their distributors ("Seller Indemnitees") from and against all liabilities, losses, expenses and third-party claims for injury or damages incurred by Seller Indemnitees arising out of or resulting from the receipt, storage, use or resale of the Product, including but not limited to any Trial Use. Buyer acknowledges that it uses the Product at its own risk and shall undertake such tests as are necessary in order to satisfy itself that such Product is fit for the purposes for which Buyer proposes to use it. Buyer shall notify Seller in writing immediately upon Buyer's receipt of knowledge of any incident involving the Products which result in personal injury or claim of any kind. Buyer agrees to fully cooperate with Seller in the investigation and determination of the cause of such incident and shall make available to Seller all statements, reports and tests made by Buyer or made available to Buyer by others. The furnishing of such information to Seller and any investigation by Seller of such information or incident report shall not in any way constitute any assumption of any liability for such accident or incident by Seller.

  1. Buyer acknowledges and agrees that:
    1. the Product is a decision support tool only and must not be relied on as a definitive source of information regarding
      1. the assessment of any embryo to be used in an IVF procedure; or
      2. any other business purposes;
    2. while the technology underlying the Product comprises advanced proprietary algorithms to generate data, Seller gives no warranty or guarantee as to the accuracy or reliability of the Product or any result from its use and Seller expressly disclaims any such warranty or guarantee; and
    3. any advice or service provided to a patient by the Buyer (or its users) is based on the Buyer’s (and its users’) interpretation of the Product results as well as their own skill, experience and professional judgement.

Buyer must not represent to a patient or any other person that any advice or service provided by the Buyer (or its users) to a patient is based solely on any data or other result from use of the Product, or make any representation to a patient or any other person which is inconsistent with the foregoing provisions of this Indemnity subclause (1).

Insurance

Buyer shall maintain such third party liability and property damage insurance, including general and product liability and worker’s compensation insurance coverage, with such insurers and in such amounts as shall be commercially reasonable and may be required by applicable laws and regulations. Buyer shall, upon Seller's request, provide Seller with certificates evidencing such insurance.

Intellectual Property Rights

The Products and Services involve valuable patent (and patent application(s)), copyright, trademark, trade secret and other intellectual property rights of OPL. All such rights are reserved. No title to or ownership of any intellectual property rights related to any Product is transferred to Buyer pursuant to this Agreement. Buyer will not attempt to reverse engineer any Product or component thereof (including any software) or to otherwise misappropriate, circumvent or violate any of Seller's or OPL's intellectual property rights.

Confidential Information

Seller may disclose to Buyer certain trade secret, proprietary or confidential information ("Confidential Information"). Except as otherwise authorized by Seller in writing, Buyer shall not use such Confidential Information except for the purposes for which it is authorized in writing by Seller. Buyer will not disclose to any third party such Confidential Information under any circumstances and will maintain in confidence the Confidential Information with at least the same degree of care Buyer holds its own Confidential Information, but at all times with not less than reasonable care and will take appropriate steps to protect it from any unauthorized use or disclosure. Promptly after disclosure by Seller, Such Confidential Information shall be marked or otherwise identified as trade secret proprietary or confidential by the Buyer. Buyer may disclose to such Confidential Information to its directors, officers, employees legal and financial advisors and consultants on a need-to-know basis who are obliged to be bound by confidentiality and non-use obligations at least as restrictive as those set forth herein.

General Contract Provisions

Any failure by Seller to insist upon or enforce performance by Buyer of any of the provisions of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of Seller's right to assert or rely upon any such provision, right or remedy in that or any other instance. This Agreement will inure to the benefit of and be binding upon the parties and their respective successors, assigns and legal representatives. If any provision of this Agreement is found to be invalid or unenforceable, then the remainder shall remain to be in full force and effect, and the invalid provision shall be partially enforced to the maximum extent permitted by law to effectuate the purpose of the Agreement. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law principles. The provisions of the U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Buyer consents to the personal jurisdiction and venue of the state and federal courts located in Orange County, California regarding any suit, proceeding or claim arising out of or related to this Agreement or its subject matter and will not commence or prosecute any such claim, suit or proceeding other than in such courts. No amendment, modification, or waiver of this Agreement will be valid unless set forth in a written instrument signed by the party to be bound.

NO RESALE OF PRODUCTS WITHOUT THE EXPRESS PRIOR WRITTEN APPROVAL OF SELLER

In purchasing Seller's Products or Services, Buyer shall comply at all times with all applicable laws and regulations, including without limitation, United States Export Administration Regulations ("EAR") and any other applicable export control and sanctions regulations, and all environmental and health and safety laws and regulations (collectively, "Regulations"). In furtherance and not in limitation of the foregoing:

  1. Subject to the express prior written approval of Seller, Buyer shall have the sole responsibility for obtaining and maintaining, and shall obtain and maintain, any and all approvals, licenses, permits, registrations or authorizations, howsoever called, of any applicable regulatory agency, department, bureau or other government entity necessary for use of Seller’s Products, and shall not sell any Products to, or for the use or benefit of, any intermediary or ultimate purchaser with which Seller could not deal under laws or regulations of any applicable jurisdictions; and
  2. Buyer shall not directly or indirectly, engage in any activity or transaction in relation to any U.S. sanctioned country that, if undertaken by a U.S. person, would be in violation of U.S. sanctions laws and regulations, including, but not limited to, the International Emergency Economic Powers Act (50 U.S.C. § 1701-1706), the provisions of related Executive Orders, sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control ("OFAC") and any other Regulations that may be in effect and applicable to such sanctioned countries, unless both (i) applicable authorizations are obtained or general licenses apply, and (ii) Seller has provided its express prior written approval.


 

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