THESE TERMS AND CONDITIONS (THESE “TERMS AND CONDITIONS”) GOVERN THE PERFORMANCE BY ONCIMMUNETM (USA) LLC (“SELLER”) FOR ANY PERSON (“CUSTOMER”) OF THOSE ANALYTICAL TESTING SERVICES (THE “SERVICES”) SET FORTH ON THE ORDER (THE “REQUISITION FORM”) SUBMITTED BY THE ORDERING PHYSICIAN ON BEHALF OF CUSTOMER TO SELLER. THESE TERMS AND CONDITIONS APPLY NOTWITHSTANDING ANY CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS IN ANY COMMUNICATION FROM CUSTOMER. THESE TERMS AND CONDITIONS MAY ONLY BE WAIVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. EXCEPT AS MAY OTHERWISE BE SET FORTH HEREIN, NEITHER SELLER’S ACKNOWLEDGMENT OF ANY COMMUNICATION FROM CUSTOMER NOR SELLER’S FAILURE TO OBJECT TO CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS IN A COMMUNICATION FROM CUSTOMER SHALL BE DEEMED AN ACCEPTANCE OF SUCH TERMS AND CONDITIONS OR A WAIVER OF THE PROVISIONS HEREOF.
1. ORDERS. Orders shall be initiated by the Customer through completion of the Requisition Form or by otherwise placing an order by electronic means acceptable to Seller in its sole discretion. Completion of the Requisition Form shall be deemed to have occurred upon (a) identification of the Services to be performed; (b) valid signature by the physician ordering the Services (“Physician”); (c) valid signature by the Customer agreeing to the “Informed Consent and Release Statement” on the back (or page 2, as applicable) of the Requisition Form; (d) receipt by Seller of the Customer’s blood sample drawn by the Physician (the “Sample”); and (e) receipt by Seller of Payment (as defined below) in full from the Customer. All orders are subject to acceptance by Seller. No orders for the Services may be cancelled or rescheduled without Seller’s consent, which consent may be given by Seller in its sole discretion. Notwithstanding any provision of these Terms and Conditions to the contrary, the Customer will have full responsibility to ensure Seller receives the Payment for all Services requested within ten (10) business days following the date the applicable Sample is collected (the “Collection Date”; such period, the “Payment Period”). Payment not received within the Payment Period will be subject to a $50.00 (USD) fee, which shall be non-cancelable and non-returnable. If the Customer does not provide Payment in full to Seller within the Payment Period, then the original Sample will be deemed to be expired and the Customer will be required to submit a new Sample, at the Customer’s sole expense.
2. PRICES. Pricing shall be specified by Seller and shall be applicable for fifteen (15) days following the Collection Date. Notwithstanding the foregoing, prices shall be subject to increase in the event of an increase in Seller’s costs or the occurrence of other circumstances or events beyond Seller’s reasonable control. Prices are exclusive of taxes, impositions and other charges, including, without limitation, sales, use, excise, value added and similar taxes or charges imposed by any government authority, international shipping charges, forwarding agent’s and broker’s fees, consular fees, document fees and import duties, which costs shall in all events be borne by the Customer. If Seller pays any of such costs, Seller may charge all such costs it pays to Customer in addition to the price of the Services. All fees charged to the Customer are subject to the “Terms of Payment” set forth in Section 3 below.
3. TERMS OF PAYMENT. Payment shall be submitted either (a) to the location at which the applicable Sample was drawn or (b) electronically via Seller’s website at www.oncimmune.com. The Seller reserves the right to delay sending or withhold Results (as defined below) or delay or cease processing the Sample due to Customer’s failure to pay the Payment in full during the Payment Period; provided, however, that the Seller will make reasonable efforts to notify the Physician of any instances of non-payment. Customer agrees to pay the entire net amount of all Services to be performed by Seller pursuant to the terms of each Requisition Form without offset or deduction (the “Payment”). Orders are subject to the Seller receiving Payment in full. Seller may in its sole discretion at any time change the required method for making a Payment, including, without limitation, by requiring payment by bank wire transfer or by official bank check and/or requiring payment of any or all amounts due or to become due for Customer’s order before processing any or all Services. Customer agrees to submit such financial information from time to time as may be reasonably requested by Seller for the establishment and/or continuation of payment. Checks are accepted subject to collection and the date of collection shall be deemed to be the date of payment. When Customer provides a check as payment, Customer authorizes Seller to, in Seller’s sole discretion, either use information from such check to make a one-time electronic fund transfer from Customer’s account or process the payment as a check transaction. When Seller uses the information from Customer’s check to make an electronic fund transfer, funds may be withdrawn from Customer’s account as soon as the same day Seller receives the Payment and Customer may not receive the check back from his or her financial institution. Customer shall pay interest on any portion of any invoice not paid when due from the due date to the date of payment at the higher of one and one-half percent (1-1/2%) per month or such lower rate as may be the maximum allowable by law. If Customer fails to make any payment when due, Seller may pursue any legal or equitable remedies, in which event Seller shall be entitled to reimbursement for costs of collection and reasonable attorneys’ fees. Any payment received from Customer may be applied by Seller against any obligation owing from Customer to Seller, regardless of any statement appearing on or referring to such payment, without discharging Customer’s liability for any additional amounts owing from Customer to Seller, and the acceptance by Seller of such payment shall not constitute a waiver of Seller’s right to pursue the collection of any remaining balance.
4. TEST PROCESSING AND DELIVERY OF RESULTS. Except as otherwise set forth herein, Seller shall deliver all results of tests performed as a part of the Services (the “Results”) processed by Seller for Customer to the Physician’s office. Seller shall make reasonable efforts to communicate the Results to the Physician through a secure method; provided, however, that Customer agrees to hold harmless Seller for any unauthorized disclosure or transmission error. Seller shall not have any responsibility for any treatment, handling or storage of the Results or personal information by the Physician’s office. Customer shall assume full responsibility for following the Physician’s protocol for receiving the Results and following recommended treatment. In the event that Customer or Physician requests expedited or priority delivery of the Results, all transportation charges shall be borne by Customer. Seller shall use reasonable efforts to initiate delivery of Results as close as possible to any delivery date requested by Customer or Physician. Customer acknowledges that any delivery dates provided by Seller are estimates only and that Seller is not liable for failure to deliver on such dates. In the event that either the Sample or the Results are damaged, destroyed or lost during transportation, Seller agrees to re-send the Results or to re-perform the tests leading to such Results, as applicable, at Seller’s cost; provided, however, that Customer must submit a new Sample through the Physician within three (3) months following the Collection Date for the original Sample in order for Seller to assume such re-testing costs.
5. ACCEPTANCE AND SUBMISSION OF SAMPLE AND SAMPLE RESULTS. Inspection and acceptance of the Sample shall be in the Seller’s sole discretion. Customer is deemed to have submitted the Sample on the Collection Date, and Customer waives any right to revoke Sample submission thereafter. The Results delivered pursuant to Section 4 above will be positive or negative. Customer agrees to the “Customer Informed Consent and Release Statement” on the back of the Requisition Form (or page two 2, as applicable), outlining the possible result outcomes of the Services, and accepts the benefits, risks, and limitations of the Services, including but not limited to, the possibility of false negative and false positive Results, and the possibility of a positive Result that is of another cancer type. Customer understands a positive or negative Result may result in differing opinions among healthcare providers regarding the best steps to take in follow up and assumes sole responsibility for treatment and follow up decisions. Seller in no way implies recommended treatment and follow up for Customer, and Customer hereby holds harmless and indemnifies Seller against any and all allegations relating to treatment recommendation. Customer also understands that the Results represent a specific outcome as of the Collection Date, and understands cancer could form thereafter.
6. FORCE MAJEURE. Seller shall not be liable for failure to fulfill its obligations herein or for delays in delivery of Results due to causes beyond its reasonable control, including, but not limited to acts of God, natural disasters, acts or omissions of other parties, acts or omissions of civil or military authority, government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, riots, war, acts of terrorism, delays in transportation or inability to obtain labor or materials through its regular sources. Seller’s time for performance of any such obligation shall be extended for the time period of such delay or Seller may, at its option, cancel any order or remaining part thereof without liability by giving notice of such cancellation to Physician.
7. USE OF CUSTOMER SAMPLE, DATA AND SERUM AFTER EARLYCDTTM IS PERFORMED. The information provided by or to the Customer, including without limitation, the Sample, Results, Customer clinical history, and statistical information, may be used by Seller for data collection, test analysis and trending, and diagnosis follow-up and for research and publication purposes on a de-identified basis, as may be described on the Requisition Form.
8. LABORATORY REGULATIONS AND INTERNAL CONTROL POLICY. Seller operates under the Clinical Laboratory Improvement Amendments of 1988 (CLIA) guidelines. Seller shall make reasonable efforts to comply with its internal quality control guidelines and CLIA guidelines. Seller assumes no liability and Customer agrees to hold harmless and indemnify Seller against any allegations of failure to comply with such guidelines.
9. STATEMENTS AND ADVICE. If statements or advice, technical or otherwise, are offered or given to Customer, such statements or advice shall be deemed to be given as an accommodation to Customer and without charge and Seller shall have no responsibility or liability for the content or use of such statements or advice.
10. INTELLECTUAL PROPERTY. Customer is subject to all intellectual property laws, including but not limited to federal copyright laws, federal and state trademark laws and patent laws, as they apply to Seller’s materials provided to Customer by Physician or through Seller’s website. Customer is responsible for obtaining a copy of the federal laws regarding intellectual property, copyright, trademark, patent and infringement laws. Nothing herein shall be construed as granting any right or license to use any material or other intellectual property in any manner or for any purpose not expressly permitted by Seller or its assigned officer(s).
11. GENERAL. As used herein, terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular. No rights, duties, agreements or obligations hereunder may be assigned or transferred by either party, by operation of law, merger or otherwise, without the prior written consent of the other. Any attempted or purported assignment shall be void. Notwithstanding the foregoing, Seller’s obligations under these Terms and Conditions may be performed by divisions, subsidiaries or affiliates of Seller, and Seller may assign its rights to a purchaser of all or substantially all of its assets without the prior written consent of Customer. The obligations, rights, terms, and conditions hereof shall be binding on the parties hereto and their respective successors and assigns. The waiver of any provision hereof or of any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Kansas excluding any law or principle which would apply the law of any other jurisdiction. The United Nations Convention for the International Sale of Goods shall not apply.
(Effective: May 18, 2009)
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