Terms and Conditions

These Terms and Conditions (“Terms”) govern the use of the Clear Dx Platform (“Platform”) by the Customer during the Term and are incorporated into and made a part of the Subscription Agreement (“Agreement”) whereby the Customer agrees as follows. Capitalized terms are defined in the foregoing Quotation unless defined in these Terms.

1. Clear Dx Platform. During the Term, subject to this Agreement and payment of applicable fees, Clear Labs grants Customer, under Clear Labs or its suppliers’ intellectual property rights, a personal, nonexclusive, non-transferable license to use the Platform and Documentation at the site stated in the Quotation (“Site”) solely for its internal business purposes of performing clinical diagnostic tests as listed in the Quotation (“Tests”) subject to and in accordance with this Agreement, the Documentation and all applicable laws and regulations. Clear Labs and its lessors and licensors reserve all rights not expressly granted to Customer under this Agreement. “Documentation” means documents, guides, manuals describing features and functionality of the Platform (“Specifications”) and installation, use, support and maintenance of the Platform excluding marketing and sales collateral.

2. Ownership.

2.1  Clear Labs, its licensors and suppliers,  retain ownership of the Platform including but not limited to the Instrument and Software), Documentation, Instrument Data, all copies, upgrades, updates and derivatives thereof, all data (excluding Customer Data) along with the results and feedback relating thereto, all know-how and intellectual property rights in  appurtenant to the Platform (“Clear Labs Data”).  Customer hereby grants Clear Labs, its licensors and suppliers, a non-exclusive fully paid-up right and license to derivative works of or improvements to the Platform. “Instrument Data” means any data generated by or through use of the Platform including, without limitation, instrument run reports, run parameters, run operating conditions, and any data generated by or available through use of Software pertaining to functioning of Platform. “Customer Data” means all data Customer uses and/or provides to Clear Labs in conjunction with the use of the Platform excluding Clear Labs Data.

Title to the Clear Labs Consumables and Reagent Kits (excluding intellectual property rights therein) transfer to Customer purchasing such items. Software and Documentation are protected by copyright laws and international laws and treaties. The Platform will be physically identified as Clear Labs (or its lessor’s) property. Hardware may be new or refurbished. Rights not expressly granted are reserved by Clear Labs and its licensors.

3. Customer Data. Customer grants to Clear Labs the right to access and use Customer Data in order to provide services to the Customer and as necessary to monitor and improve the products and services offered by Clear Labs. In order to improve its products and services, certain subsets of the data in a fully anonymized and depersonalized format that cannot be distinguished, identified or attributed to any given customer may be used. Customer, not Clear Labs, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Data. Clear Labs will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data.

4. Use of Software and Documentation.

4.1  During the Term, upon payment of all fees and compliance with this Agreement, Clear Labs grants Customer a limited, non-exclusive, non- transferable, non-sublicensable right to: (a) use the Software (and such upgrades, updates and other enhancements provided to Customer) in object code only in conjunction with the Platform solely for its internal business purposes of performing the Tests; and (b) to use the accompanying Documentation in conjunction with Customer’s authorized use of the Platform. Customer may elect to purchase a subscription to access and use Software as a service (“SaaS”).

Customer may reproduce only so many copies of the Documentation as reasonably required for use in accordance with this Agreement and all such copies will include all proprietary notices or labels. Software is delivered and licensed as “Commercial Computer Software” as defined in DFARS 252.227-7014 (June, 1995) or as a “commercial item” as defined in FAR 2.101(a), “Restricted Computer Software” as defined in FAR 52.227-19 (June 1987) (or any equivalent agency regulation or contract clause), as appropriate. Customer agrees that it has only those rights provided for such Software by the applicable FAR or DFARS clause or the Software related terms in this Agreement. Software may contain open source components; use of which is governed by the terms of such applicable open source licenses. “Software” means the software listed in the Quotation and otherwise provides to Customer which Clear Labs makes available for Customer and its Users’ access and use in conjunction with the Platform and consists of a package comprised of device-based software and cloud-based services and applications.

5. Passwords. As part of the registration process, Customer and its authorized users (“Users”) will select passwords for use of the Software through Customer’s account. Customer is responsible for maintaining the confidentiality of its and its Users’ passwords and complying with all applicable terms of use of the Software including but not limited to those stated in Section 5 and the Terms of Use posted at https://www.clearlabs.com/termsofuse/ and those communicated from time to time by Clear Labs (collectively, “Terms of Use”). Customer agrees that it and its Users will not use or attempt to use another user’s account without authorization. Customer agrees Clear Labs is not responsible or liable to Customer or its Users for the unauthorized use or disclosure of passwords. Customer will notify Clear Labs immediately if it has any reason to believe that the security of its accounts has been compromised.  Customer agree to assist Clear Labs in all investigations, remediation, reporting and notifications Clear Labs deems necessary.

6. Security. Clear Labs uses commercially reasonable practices, including encryption and firewalls, to protect against unauthorized access and use of Customer’s account. Customer acknowledges that the internet is an open system and Clear Labs cannot and does not warrant or guarantee that third parties cannot or will not access or use Customer’s account or Confidential Information.

7. Further Assurances. Customer agrees to, throughout the Term: (a) meet or satisfy standards of all applicable governmental bodies, including, for example, the U.S. Food & Drug Administration (“USFDA”) when using the Platform; (b) obtain and maintain all required regulatory or certification requirements of any governmental body including, for example the USFDA, as Customer is responsible solely to ensure its use of the Platform complies with all applicable legal, regulatory or certification requirements; (c) keep the Platform at the Site during the Term, unless Clear Labs first approves, in writing, of any relocation; in which case, the relocation will be done in accordance with Clear Labs’ instructions at Customer’s cost and expense; (d) keep the Platform free from all liens and encumbrances or other adverse claims of title; (f) execute Uniform Commercial Code financing statements to evidence Clear Labs or its lessor’s ownership interest in the Platform and to execute and/or furnish to Clear Labs or its lessor any further instruments and assurances reasonably requested to protect Clear Labs and its lessor’s interest in the Platform including any landlord(s) and/or mortgagee(s) waiver of any interest in the Platform; (e) permit use of the Platform only by its employees or other persons who are trained and familiar with the Platform operation and who have completed training and in accordance with this Agreement and the Documentation; (f) notify Clear Labs of the need for support promptly and permit access to perform support and maintenance of the Platform to keep the Platform is in good working condition at all times; (g) notify Clear Labs promptly of any damage or loss to or accidents or spills associated with the Platform; and, (h) permit Clear Labs and its authorized representatives access to the Platform as described below. Customer will indemnify, defend and hold Clear Labs, its licensors, suppliers and authorized representatives, harmless from and against all losses, liabilities and damages including but not limited to reasonable expert and attorneys’ fees and all costs, arising or resulting from Customer’s negligence, breach of this Agreement or breach of any applicable law, regulation, order or standard.

8. Restrictions. Customer will not and will not, directly or indirectly, permit any third party to: (a) use, reproduce, modify, adapt or translate the Platform (or any component part of the Platform including, for example and not exclusion, the Software or Documentation); (b) reverse engineer disassemble, decompile, decrypt, modify, translate or otherwise attempt to derive the composition of the Platform or seek to create derivatives or to discover any source code or underling Confidential Information (except and to the extent applicable laws specifically prohibit such restrictions); (c) use the Platform except as expressly permitted by this Agreement and the Documentation; (d) separate the Platform into component parts other than as provided by Clear Labs to Customer; or, (e) remove or alter any proprietary notices or labels on the Platform, Clear Labs Consumables and Reagent Kits or Documentation.

9. Consumables and Reagent Kits. Flow Cells. The Platform is designed to operate only with the Clear Labs Consumables and Reagent Kits listed on the Quotation (and as Clear Labs may update from time to time). All product claims, performance parameters, warranties and licenses are only valid when the Platform is operated with Clear Labs’ Consumables and Reagent Kits. Clear Labs does not accept returns or offer refunds for expired Consumables and Reagent Kits purchased by Customer.  Customer return to Clear Labs, using the prepaid packaging provided by Clear Labs, the Flow Cells as soon as reasonably possible, except that Customer will not return contaminated Flow Cells to Clear Labs, and instead will provide Clear Labs proof of legal and appropriate destruction of contaminated Flow Cells. Additionally, Customer will, upon expiration or termination of this Agreement, if requested by Clear Labs, return to Clear Labs, using the prepaid packaging provided by Clear Labs, Flow Cells which remain in Customer’s possession or the possession of a third party at the time of such termination  (except contaminated Flow Cells). Clear Labs reserves the right to recover from Customer monetary compensation for any Flow Cells not returned or for which proof of legal and appropriate destruction of contaminated Flow Cells has not  been provided to Clear Labs.

10. Prices. Prices are in U.S. dollars. Prices do not include taxes, duties, insurance, shipping or other fees or charges required for the transportation, installation, use or sale of the Platform (“Taxes and Fees”). Customer will reimburse Clear Labs for all such Taxes and Fees as invoiced. Prices will be fixed for the term of the attached agreement. Upon request, Clear Labs representative will provide summary of all testing conducted by the Customer every 12 months.

11. Payment. All amounts are due and payable within 30 days of the date of the invoice, without set-off or deduction and are non-refundable. All payments will be remitted to Clear Labs at the address stated in the invoice. Late payments accrue simple interest at the rate of 2% per month or the maximum permitted by law until all outstanding amounts are paid in full. Payment terms may be adjusted based on credit approval or compliance with this provision. Customer will pay all costs of collection of unpaid invoices, including reasonable attorneys’ fees and court costs.

12. Delivery. The Platform, Consumables and Reagent Kits will be shipped: (a) within the U.S., to the FOB Site or as the parties otherwise agree in writing; or (b) internationally, DAP (INCOTERMS 2010) to the Site; and, (c) Taxes and Fees apply. Risk of loss passes to Customer upon delivery. Delivery dates are not guaranteed and supply is subject to applicable lead times and availability. Software will be preinstalled on the Hardware or made available for download. Clear Labs will use commercially reasonable efforts to notify Customer if its requirements will not be satisfied, specifying, if possible, the reasons for the expected delay and its anticipated duration. In no event will Clear Labs be liable or responsible for any damage or penalty for delay in delivery or failure to give notice of delay. Delivery may be in advance of any scheduled delivery date upon reasonable prior notice to Customer. The Platform, Software, Consumables and Reagent Kits are accepted on delivery except Customer will submit all claims for damages, shortages or notice of other irregularities to Clear Labs within 5 business days after delivery; all of which claims will be addressed by Clear Labs or its authorized representatives in accordance with the applicable support and maintenance program. Customer is required to retain all shipping materials as the Hardware must be shipped in its original packaging. If packaging is lost or damaged, Customer will be charged for the replacement of shipping materials.

13. Site Survey, Preparation and Access. At least 30 days before the scheduled delivery date of Hardware, Customer will complete a site survey and return it to Clear Labs, provide responses to requested information, notify Clear Labs, in writing, of all latent and patent hazards and hazmat on or around the Site and ensure the Site (and access to the Site) is safe for access and installation of the Hardware. Clear Labs and its employees, contractors and suppliers (collectively, “CL Personnel”), are entitled to rely on the accuracy and completeness of the Site Survey and all information Customer submits to CL Personnel and Customer agrees to update such information as appropriate. Customer is responsible for providing, at its own cost, preparations for installation of the Platform, including but not limited to environmental, power and air supply requirements as instructed. Customer grants CL Personnel access to the Site and will provide assistance to plan and complete installation and to maintain and support the Platform. Installation or on-site maintenance or support may be suspended and/or delayed if, in CL Personnel’s reasonable discretion, the Site is not safe or adequately prepared; in which case, Customer is responsible for all fees, costs and expenses resulting therefrom. Once delivered, the Hardware will remain at the Site for the duration of the Term. In addition to allowing access for installation, Customer will permit Clear Labs or CL Personnel access to the Site during business hours to confirm compliance with this Agreement or to permit deinstallation on the expiration or earlier termination of this Agreement.

14. Support and Maintenance. Customer will notify Clear Labs promptly of all Defects in the Platform. “Defects” means reproducible errors or failures of the Platform to perform materially in conformity with the Documentation when used in accordance with the Documentation and this Agreement. Clear Labs will provide technical support and maintenance of the Platform in accordance the Clear Dx Services Program attached hereto and incorporated herein and as updated from time to time by Clear Labs

15. Limited Warranty. Disclaimer. The Limited Warranty and applicable Disclaimers are stated in the attachment to these Terms and Conditions.

16. Limitation of Liability. CLEAR LABS, ITS LICENSORS AND SUPPLIERS, ARE NOT LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR (A) LOSS, DAMAGE, CORRUPTION OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (B) DAMAGES RESULTING FROM USE OTHER THAN IN CONFORMANCE WITH THIS AGREEMENT AND ALL APPLICABLE LAWS, REGULATIONS AND STANDARDS; (C) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO LOST REVENUES AND PROFITS, OR OTHER COMMERCIAL OR ECONOMIC; AND (D) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE AMOUNTS PAID AND PAYABLE HEREUNDER FOR THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE OR, IF GREATER, $1,000.00. The foregoing limits apply even if Clear Labs, its licensors, suppliers or authorized representatives, have been negligent or informed of the possibility of such damages and/or such damages are foreseeable. Clear Labs, its licensors, suppliers and representatives, do not and cannot know all of the potential consequences to Customer’s business of a failure of the Platform to perform as expected or use other than in conformance with this Agreement and all applicable laws, regulations and standards. That is why Clear Labs does not agree to be responsible for Customer’s incidental or consequential business losses in the event the Platform fails to perform as expected.

17. Confidentiality. “Confidential Information” means non-public information, in any form or format, marked confidential, identified as Confidential Information at the time of disclosure or the nature of the information and the manner of disclosure are such that a reasonable person would understand it to be confidential or proprietary to the disclosing party. Recipient will use commercially reasonable efforts to maintain the confidentiality of the discloser’s Confidential Information. Recipient agrees to use disclosing party’s Confidential Information only for purposes consistent with this Agreement. Recipient will not use the disclosing party’s Confidentiality Information in any manner detrimental to the disclosing party including by way of example and not limitation, recipient will not reverse engineer, disassemble, decompile or design around the disclosing party’s proprietary services, products and/or confidential intellectual property, will notify disclosing party promptly of any unauthorized use or disclosure of Confidential Information and will assist in the investigation, remediation, reporting and notification. Confidential Information may be disclosed and used by recipient’s employees, contractors, professional advisors and third parties having a need to know and who are under a similar obligation of confidentiality. Nothing in this Section 14 will be construed to impose a confidentiality obligation on the recipient as to any information which is: (i) at the time of disclosure already known to the recipient without restriction; (ii) at the time of disclosure or subsequently becomes part of the public domain through no fault, act or omission of the recipient; (iii) subsequently disclosed to the recipient by a third party whose receipt and disclosure of such information does not constitute a violation of any confidentiality obligation; (iv) independently developed by or for the recipient by those having no access to or knowledge of the confidential information received; or (v) required to be disclosed by law or governmental regulation; in which case, except to the extent restricted, the recipient will notify the disclosing party promptly to allow disclosing party to seek to quash or otherwise limit or protect the disclosure of the Confidential Information.

18. Termination. Effect of Termination. (a) Termination. Either party may terminate this Agreement by providing written notice of non-renewal to the other party at least 60 days before the expiration of the then-current Term. A party may terminate this Agreement: (i) effective 60 days following receipt of written notice if the other party fails to cure a material breach of this Agreement as specified in the written notice of breach within the notice period; (ii) if any proceeding is brought by or against a party in bankruptcy or insolvency, or the appointment of a receiver or trustee for a party’s assets, or if a party ceases operations or an assignment for the benefit of creditors is made by a party. Clear Labs may suspend accepting orders from Customer, shipping Products or performing Services in addition to all rights in law or equity until Customer cures its breach.

(b) Effect of Termination. Within 10 business days of the expiration or termination of the Agreement for any reason and as disclosing party instructs, the recipient will return to the disclosing party its Confidential Information or certify that such Confidential Information has been permanently deleted or destroyed except recipient: (i) need not destroy electronic archives and backups made in the ordinary course of business where it would be commercially impracticable to do so (which copies shall be governed by the terms of this Agreement); and (ii) may retain a single copy of such Confidential Information for archival purposes subject to Section 17; and (iii) all outstanding amounts become due and payable. Sections 2, 3,11, 15,  through 1 17, 18(b) and 19, Clear Dx Limited Warrant and Liability survive expiration or termination of this Agreement for any reason.

(c) No Termination Payment. Each party understands that the rights of termination hereunder are absolute. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind (including, without limitation, damage to or loss of goodwill or investment) suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination by such party (or expiration) that complies with the terms of the Agreement whether or not such party is aware of any such damage, loss or expenses (but, for clarity, this clause is not intended to limit either party’s obligations to pay amounts properly owed under the terms of this Agreement).

19. General. (a) Compliance. Customer will comply with all applicable laws, regulations, policies, ordinances and standards pertaining to procurement and use including but not limited to those of U.S. Food & Drug Administration and relating to U.S. Export Regulations, privacy and data security. Diversion contrary to U.S. law is prohibited.

(b)  Government Use.  The Software and any documentation are commercial items, as that term is defined in 48 CFR 2.101, consisting of commercial computer software and commercial computer software documentation, as those terms are used in 48 CFR 12.212. If the Software or any documentation is acquired by or on behalf of the U.S. government or by a U.S. government contractor (including without limitation prime contractors and subcontractors at any tier), then in accordance with 48 CFR 227.7202-4 (for Department of Defense licenses only) and 48 CFR 12.212 (for licenses with all federal government agencies), the government’s rights to the Software and such documentation are limited and subject to the commercial rights specifically granted in this Agreement, as restricted by this Agreement. The rights limited by the preceding sentence include, without limitation, any rights to reproduce, modify, perform, display, disclose, release, or otherwise use the Software or documentation. This Section 20(b) does not grant Customer any rights not specifically set forth in this Agreement.

(c)   Compliance with Applicable Laws.  Customer will comply with all applicable laws and regulations, including, without limitation: (i) all privacy laws and regulations; (ii) export laws and regulations; and,  (iii) the U.S. Foreign Corrupt Practices Act, the UK Bribery Act and all similar laws and regulations which prohibit offering any inducement, whether money or goods or services, to any government official, employee, candidate or party. Customer will obtain any licenses or approvals the U.S. government or any agency thereof requires prior to exporting, directly or indirectly, any technical data acquired from Clear Labs or by use of the Platform including, by way of example and not exclusion, as applicable, complying with  the Export Administration Regulations of the Bureau of Industry and Security (“BIS”) of the U.S. Department of Commerce and the economic sanctions administered by the Office of Foreign Assets Control (“OFAC”), of the U.S. Department of the Treasury and to obtain any necessary license or other authorization to export, reexport, or transfer Clear Labs’ Confidential Information or the Platform. Without limiting the foregoing, Customer will not, and will ensure a third party will not, export, re-export, provide, or transfer Confidential Information or the Platform, in whole or in part, to  Crimea, Cuba, Iran, North Korea, Sudan, or Syria (and such countries updated), to the governments of these countries, wherever located, to any person or entity identified on BIS’s Denied Persons, Entity, or Unverified List or OFAC’s Specially Designated Nationals List or List of Consolidated Sanctions, to any end user with knowledge or reason to know that the Platform or Confidential Information will be used for nuclear, chemical, or biological weapons proliferation, or for missile-development purposes or to any person with knowledge or reason to know that they will export, re-export, provide, or transfer the Platform or Confidential Information other than in compliance with the foregoing restrictions.

(d)  Assignment. Customer will not assign or transfer rights or obligations hereunder or the Clear Dx Platform to a third party by operation of law or otherwise without Clear Labs’ prior written consent. Clear Labs may assign or transfer its rights or obligations hereunder to a successor agreeing to be bound to this Agreement.

(e) Independent. The relationship of Seller to Buyer under this Agreement is intended to be that of independent contractor.

(f) Governing Law. Attorneys’ Fees.  This Agreement is governed by and construed in accordance with the laws of the State of California without regard to the conflicts of law provisions. The prevailing party in any claim or cause of action arising from or relating to this Agreement is entitled to be awarded its costs and reasonable attorneys’ fees.

(g) Cumulative Remedies. Injunctive Relief. Clear Labs has all other rights and remedies provided at law, in equity and under this Agreement, and all of Clear Labs’ rights and remedies shall be cumulative and none shall be considered Clear Labs’ exclusive remedy. Customer agrees any breach or threatened breach of Section 4, 5 or 15 will cause Clear Labs irreparable damage for which it may have no adequate remedy at law; in which case, Clear Labs is entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

(h) Severance. Waiver. If any provision of this Agreement is held to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable. The failure of a party to enforce its rights hereunder will not be construed as a waiver of such rights.

(i) Notice. Written notices are effective once delivered to or rejected by a party at its specified address.

(j) Entire Agreement. This Agreement, including any Order and Exhibit, constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior communications and understandings, whether written or oral, relating to such subject matter superseding all of Customer’s standard terms and conditions posted or otherwise made available in any form or format. No change, amendment, modification or supplement to this Agreement will be binding unless made in writing and executed by authorized representatives of both parties.

(j) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Manual signatures transmitted in any electronic method including PDF Scans or facsimile shall have the same force and effect and be as binding as original signatures.

 

Clear Dx Limited Warranty and Liability

1. Limited Warranties:

When used in accordance with this Agreement and the Documentation, the Platform determines the presence of the target organism(s) specified in the software selection (“Test”). The Platform has been tested against many, but not all, strains of the target organism(s) within the sample types specified in the Documentation. Clear Labs, therefore, cannot and does not make any representation or warranty that the Platform detects every organism in the target genus, serotype, or species in any sample source. Accordingly, the Platform is merely one tool to facilitate in vitro diagnosis and, which has not been approved for human diagnostic or human treatment, so the results from using the Platform should not be used as the sole basis for determining the presence of the target organism(s) specified in the Test.

When used in accordance with the Documentation and the Agreement, Clear Labs warrants to Customer that: (a) the Hardware will perform materially in according to Specifications for 12 months from delivery; and, (b) the Software will perform materially in accordance the Specifications for 30 days from delivery.  Customer’s exclusive remedy for breach of this limited warranty and Clear Labs’ sole obligation is to use commercially reasonable efforts to cure any material nonconformities of the Hardware or Software to perform materially in accordance with the applicable Specifications when used in accordance with this Agreement and the Documentation.

2. Disclaimers:

By providing the Platform and performing Services, Clear Labs, its licensors, suppliers and representatives, do not become an insurer of Customer’s business. EXCEPT AS EXPRESSLY STATED AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM (INCLUDING BUT NOT LIMITED TO THE INSTRUMENT, SOFTWARE, DOCUMENTATION, CONSUMABLES AND REAGENT KITS, FLOW CELLS AND DATA) ARE PROVIDED ON AN AS-IS BASIS WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO DISCLAIMING EXPRESSLY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT OR THOSE ARISING BY LAW, STATUTE, REGULATIONS, STANDARDS, USAGE OF TRADE, OR COURSE OF DEALING. CLEAR LABS, ITS LICENSORS AND SUPPLIERS, DO NOT WARRANT THAT THE OPERATION OF THE PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS, BE UNINTERRUPTED, ENTIRELY SECURE OR ERROR FREE. THE CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING IF THE PLATFORM WILL MEET ITS REQUIREMENTS AND FOR USING THE PLATFORM IN ACCORDANCE WITH APPLICABLE LAWS. THIS LIMITED WARRANTY DOES NOT APPLY TO DEFECTS OR NONCONFORMITIES IN THE PLATFORM CAUSED BY: (i) IMPROPER INSTALLATION, USE OR MAINTENANCE; (ii) IMPROPER OPERATING OR STORAGE CONDITIONS INCLUDING OUT-OF SPECIFICATION ENVIRONMENTAL CONDITIONS; (iii) IMPROPER SAMPLE PREPARATION; (iv) IMPROPER LOADING OF REAGENTS; (v) FAILURES CAUSED BY SPILLS, ABUSE, MISUSE, NEGLIGENCE OR IMPROPER OPERATION; (vi) FAILURE TO FOLLOW INSTRUCTIONS; (vi) MODIFICATIONS, SERVICE OR REPAIRS MADE OTHER THAN BY CLEAR LABS, ITS LICENSORS OR SUPPLIERS; (iv) FAILURE TO USE PROPER MICROBIOLOGICAL TECHNIQUES CONSISTENT WITH THE STANDARD OR CARE ACCEPTED IN THE INDUSTRY FOR THE PROPER COLLETION, STORAGE, HANDLING AND PREPARATION OF THE SAMPLE; (v) FAILURE TO USE CLEAR LABS CONSUMABLES AND REAGENT KITS OR, (vi) FORCE MAJEURE EVENTS SUCH AS ELECTRICAL OUTAGES. Customer assumes all risks and liabilities resulting from is use of the Platform alone or in combination with other products and services. This limited warranty may not be transferred or assigned, by operation of law or otherwise, without Clear Labs’ prior written consent. This warranty disclaimer constitutes an essential part of this Agreement.

Clear Dx Services Program

Clear Labs, Inc. provides Services to its end user customer (“Customer”) during the Term consisting of Warranty Services, Preventive Maintenance, Installation, Training, Validation Services and other services as Clear Labs offers from time to time for the Clear Dx Platform (“Platform”) exclusively in accordance with this Clear DX Services  Program (“Program”).  This Program governs any conflict with any other terms, conditions or agreements relating to its subject matter and may be updated by Clear Labs from time to time.

1. ClearDx Platform Limited Warranty Services. Clear Labs will provide the following services at no additional charge during the standard Warranty Period so the Platform performs materially as described in the Documentation when used in accordance with the applicable agreement and Documentation. “Warranty Period” means the twelve months following the date on which the Platform is installed. “Defects” means reproducible errors or failures of the Platform to perform materially in conformity with the Documentation when used in accordance with the Documentation and this Agreement. “Documentation” means documents, guides, instructions for use, and manuals describing features, functionality, and use of the Platform (“Specifications”) excluding marketing and sales collateral.

  • On-site Service visits scheduled during normal Business Hours of 5:00 a.m. to 5:00 p.m. PT, Monday through Friday (excluding Clear Labs holidays).
  • Technical Support Specialists are available during Business Hours to assist in troubleshooting remotely.
  • Limited on-call technical support on weekends and holidays.
  • Parts and travel and labor to install parts.
  • Labor, travel, and Preventive Maintenance kits for 1 Preventative Maintenance visit.
  • Remote access connectivity for problem identification, resolution, and monitoring.
  • Reagent replacement due to Platform failure.
  • Limited hardware and software updates

 2. Service Plan. Clear Labs offers a 1-, 2-, or 3-year Service Plan for purchase by the Customer. The Service Plan extends the standard Warranty Period for the purchased term after the expiration of the standard Warranty Period. Service Plans provide the same services listed under the standard Warranty except for each annual period purchased, there is one annual Preventive Maintenance visit.

3. Installation Services: For an additional charge, Clear Labs provides installation services for the Platform as scheduled during Business Hours.  At least 30 days before the scheduled delivery date of Platform hardware, the Customer, at its sole cost and expense,  will complete a site evaluation and provide responses to requested information to Clear Labs, in writing, of all latent and patent hazards and hazmat on or around the Site and otherwise ensure the Site (and access to the Site) is safe for access and prepared for installation of the Platform including but not limited to ensuring the required physical, environmental, power, and internet connectivity are available and suitable for proper delivery and installation.

4. Training and Validation Services: For an additional charge, a Clear Lab Field Application Scientist will provide operator training during Business Hours in the use and validation of the Platform. Verification and Validation includes Installation Qualification (“IQ”), Operational Qualification (“OQ”), and Performance Qualification (PQ). These Services will provide documented evidence that the Platform is installed and operating in accordance with the Specifications when used in accordance with the Documentation and applicable agreement

5. Registered Users and Requesting Services. Customer’s Registered Users may request Services by email or telephone (“Service Request”). Contact and correspondence information is available in the Support section of the Clear Labs website www.clearlabs.com.  In addition, the Platform may send an Run Alert message to Clear Labs’ Technical Support notifying them of a potential run error which may be addressed remotely and of which Customer will be notified. “Customer’s Registered Users” are designated by Customer as its authorized point(s) of contact for the Services and are trained and knowledgeable of the Platform and will provide assistance to plan and complete Services.

6. RMA Process.

  • RMA Request.  Customer will submit a Service Request; in response to which, Clear Labs will generate an RMA number to Customer. If the Clear Labs’ support team determines the Defect requires the return and/or replacements of a component, a return material authorization (“RMA”) will be issued. Customer must obtain Clear Labs’ authorization and comply with Clear Labs’ return RMA instructions prior to returning any items.
  • Return of Defective Components. If covered by the Warranty or Preventive Maintenance, Clear Labs will arrange for return shipment of the defective component at Clear Labs’ cost if: (a) Customer packages the defective component in the original packing material or equivalent and includes the applicable required forms or other documentation; (b) Customer writes the RMA number on the outside of the package; (c) Customer ships the returned Defective component using Clear Labs’ designated courier service within 14 days after receipt of the replacement component or will pay the purchase price for the replacement component and all associated duties, taxes, and shipment costs on receipt of Clear Labs’ invoice.
  • NDF or Outside of Warranty of Preventive Maintenance.  Customer will pay all fees on a time and materials basis and all costs relating to or resulting from “No Defect Found” with any returned component.

7. Terms and Conditions.

7.1 Customer Responsibility.  The success and scheduling of the Services depends substantially on the Customer’s participation. Any delay caused by unavailability of the Registered User(s) or scheduled Customer resources or failure to notify Clear Labs of any previously known issues or scheduled activities that could reasonably be expected to impact the Service schedule are the Customer’s responsibility and may result in delays in delivery of Services and/or additional costs. Customer is responsible solely for providing backup of data and otherwise protecting data and all systems and networks against loss or destruction prior to the provision of any Services and accepts all risk of loss and damage its systems, networks and information that may result from the performance of any Support Services.

7.2 Conditions Precedent to Services.  To receive Services, Customer must: (i) pay all applicable fees; and, (ii) meet all of its obligations under the applicable license agreement and the Services Program including, by way of example, designating and training Registered User(s).

7.3 Site Access.  Customer grants Clear Labs’ employees and contractors (“Personnel”) access to the Site for: (i) Installation; (ii) Warranty Services; (iii) Preventive Maintenance; (iv) Training; (v) Relocation and Deinstallation; and (vi) for providing other services or for such other purposes reasonably relating to use of the Platform and the Services Program. Personnel are entitled to rely on the accuracy and completeness of the site survey and all information Customer submits to Personnel which Customer will update from time to time as appropriate.  On-site Services may be suspended and/or delayed if, in Personnel’s reasonable discretion, the Site is not safe or adequately prepared; in which case, Customer is responsible for all resulting fees, costs and expenses.  Personnel are entitled to rely on the accuracy and completeness of the Site Survey and all information Customer submits to CL Personnel and Customer agrees to update such information as appropriate

7.4 Services Limited Warranties.  Clear Labs warrants Services will be performed by Clear Labs or its contractor in a good and workmanlike manner in conformity with industry standards and this Program. Clear Labs, as its sole obligation and Customer’s sole remedy, will re-perform nonconforming Services of which Customer notifies Clear Labs in writing within 30 days of the affected Services being performed. These limited warranties are made to Customer are non-transferrable.

7.5 Replacement Components.  Clear Labs may substitute, replace or discontinue any or all components of the Platform at any time and such components may be new or equivalent to new.

7.6 Exclusions to ClearDx Platform Limited Warranty and Services Limited Warranties.  Clear Labs is not liable for and the limited warranties do not apply to Defects or nonconformities in the Platform or Services caused by: (i) improper installation, use or maintenance; (ii) improper operating or storage conditions including out-of Specification environmental conditions; (iii) improper sample preparation; (iv) improper loading of Reagents; (v) failure caused by spills, abuse, misuse, negligence or improper operation; (vi) failure to follow instructions; (vii) failure to use proper microbiological techniques consistent with the industry standard of care for the proper collection, storage, handling and preparation of the sample; (viii) force majeure events such as electrical outages or surges; (ix)  use of consumables or reagents not supplied by Clear Labs; (x) modifications, service or repairs made other than by Clear Labs or its authorized representatives; (xi) problems and environmental conditions external  to the Platform; or (xii) lost, damaged or corrupt data.  Customer is responsible for backing up or otherwise protecting data at all times.  Services performed to address exclusions may result in additional charges at applicable T&M rates.

7.7   Disclaimers

(i) The Warranty does not apply to: (A) Warranty claims not made within the Warranty Period and/or not covered by the Warranty; (B) Hardware, consumables and reagents returned without Clear Labs’ prior written authorization and not in compliance with Clear Labs’ RMA procedures and instructions; (C) use, transported, installation, operation, maintenance, storage contrary to the Documentation or Clear Labs’ written instructions or recommendations.

(ii) Clear Labs’ sole obligation under the Services Program and Customer’s exclusive remedy for breach of the Services Program is to use commercially reasonable efforts to repair or replace Defects so that the Platform performs materially in accordance with the Documentation when used in accordance with the applicable license agreement and this Services Program.

(iii) THE PLATFORM, SERVICES AND DOCUMENTATION ARE PROVIDED ON AN AS-IS BASIS WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO DISCLAIMING EXPRESSLY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT OR THOSE ARISING BY LAW, STATUTE, REGULATIONS, STANDARDS, USAGE OF TRADE, OR COURSE OF DEALING. CLEAR LABS, ITS LICENSORS AND SUPPLIERS, DO NOT WARRANT THAT THE OPERATION OF THE PLATFORM OR THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, BE UNINTERRUPTED, ENTIRELY SECURE OR ERROR FREE OR THAT SERVICES WILL ADDRESS AND RESOLVE ALL DEFECTS. THE CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING IF THE PLATFORM WILL MEET ITS REQUIREMENTS. Customer assumes all risks and liabilities resulting from is use of the Platform alone or in combination with other products and services. This limited warranty may not be transferred or assigned, by operation of law or otherwise, without Clear Labs’ prior written consent. These warranty disclaimers constitute an essential part of the parties’ agreement.

7.8 Fees and Payment. Customer will pay Clear Labs the then current non-refundable fees for the Services, in advance, within 30 days of the date of Clear Labs’ invoice without set off or deduction and, once paid, are non-refundable.  Fees may be changed from time to time. Clear Labs will use reasonable efforts to notify Customer of any adjustments to the fees which change is effective for the renewal Term.  If Preventive Maintenance is purchased after expiration of the Warranty Period or if there is any lapse in Preventive Maintenance, an audit of the Platform may be required and additional fees may be due and payable.

7.9 Term.  Except for Warranty Services, Services are available once the applicable fees are paid and continues for the period of time, and successive periods of time, for which Services are ordered and applicable fees are paid (collectively, “Term”) unless earlier terminated.

7.10 Termination.  Either party may terminate this Program effective at the expiration of the then current Term by providing written notice to the other party at least 30 days prior to the expiration of the then current Term.  A party may terminate Services effective upon written notice to the other party if: (i)  the other party fails to cure a material breach within 30 days from receipt of the non-breaching party’ s written notice detailing the breach; (ii) if the other party: (A) becomes insolvent; (A) makes an arrangement with its creditors generally; (C) becomes (or its properties become) the subject of any insolvency, bankruptcy or similar proceeding which is not dismissed within 60 days; (D) goes into liquidation; or (E) otherwise ceases to function as a going concern. Notwithstanding any provision to the contrary, Clear Labs may suspend performance of Services until Customer cures any breach of the applicable license agreement or this Services Program.

7.11 Effect of Termination. Upon expiration or termination for any reason, Services will stop. Within 30 days after the termination or expiration of Services, each party will return to the other all of the other party’s Confidential Information. Sections 8(d), (f), (g), (h), (k) through (s) survive expiration or termination for any reason.