1. Applicability.These Product Sales Terms and Conditions (these “Terms“) are the only terms which govern the sale and use of all products, including any test kit or other instrument for diagnostic testing (the “Products“) by Cubed Laboratories, LLC (“Cubed”) to the person or entity purchasing the Product (“Buyer”). By submitting an order for the Product at www.cubedlabs.com Buyer hereby agree to be bound these Terms. Notwithstanding anything to the contrary contained in these Terms, Cubed may, from time to time change these Terms at its discretion without the consent of Buyer.
2. Delivery of Product(a) The Product will be delivered within a reasonable time after the receipt of Buyer’s order, subject to availability of finished Product. Cubed shall not be liable for any delays, loss, or damage in transit. Delivery of the Products shall be made EXW (Incoterms® 2020) to the place Buyer designates in its order for such Products. Cubed reserves the right to alter, modify, or redesign its Products without any obligation to replace previous shipments to Buyer
3. Title and Risk of Loss.Title and risk of loss passes to Buyer upon delivery of the Product at the Delivery Point. As collateral security for the payment of the purchase price of the Product, Buyer hereby grants to Cubed a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Product, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under applicable laws.
4. Buyer’s Acts or Omissions.If Cubed’s performance of its obligations under these Terms is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Cubed shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
5. Inspection and Rejection of Nonconforming Product.(a) Buyer shall inspect the Product upon five (5) days of receipt (“Inspection Period“). Buyer will be deemed to have accepted the Product unless it notifies Cubed in writing of any Nonconforming Product during the Inspection Period and furnishes such written evidence or other documentation as required by Cubed. “Nonconforming Product” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents. (b) If Buyer timely notifies Cubed of any Nonconforming Product, Cubed shall, in its sole discretion, (i) replace such Nonconforming Product with conforming Product, or (ii) credit or refund the Price for such Nonconforming Product, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Product to Cubed at the facility instructed by Cubed. If Cubed exercises its option to replace Nonconforming Product, Cubed shall, after receiving Buyer’s shipment of Nonconforming Product, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Product to the Delivery Point. (c) Buyer acknowledges and agrees that the remedies set forth in Section 8 are Buyer’s exclusive remedies for the delivery of Nonconforming Product. Except as provided under Section 8, all sales of Product to Buyer are made on a one-way basis and Buyer has no right to return Product purchased under these Terms to Cubed.
(a) Buyer shall purchase the Product from Cubed at the prices (the “Price“) set forth in the order form
completed by Buyer. The Price may be modified or change at any time in Cubed’s discretion without notice to Buyer.
(b) Unless otherwise agreed by Cubed, the Price are exclusive of all sales, use, and excise taxes, and any
other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by
Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for
any taxes imposed on, or with respect to, Cubed’s income, revenues, gross receipts, personal or real property, or other
7. Payment Terms and Security Interest.
(a) Buyer shall make all payments hereunder by ACH payment and in US dollars.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest
rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Cubed for all costs
incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Cubed does not waive by the exercise of any rights hereunder), Cubed shall be entitled to suspend the delivery of any Product if Buyer fails to pay any amounts when due hereunder. Buyer shall not
withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Cubed, whether
relating to Cubed’s breach, bankruptcy or otherwise.
(c) Cubed reserves a purchase money security interest in each Product delivered hereunder and in
proceeds from the sale, exchange, collection, or disposition thereof, until Customer has made payment in full for such
Product. Buyer shall, upon request by Cubed, provide all information and signatures required by Cubed to perfect such
security interest. Cubed reserves all rights granted to a secured creditor under the Uniform Commercial Code, including
the right to repossess upon default by Buyer.
8. Limited Warranty.
(a) Cubed warrants to Buyer that for a period of thirty (30) days from the date of shipment of the Product
(“Warranty Period“), that such Product will materially conform to Cubed’s published specifications, if any, in effect as of the
date of shipment.
(b) EXCEPT FOR THE WARRANTIES SET FORTH HEREIN, CUBED MAKES NO WARRANTY
WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii)
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; (iv) WARRANTY AGAINST
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED
BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(c) Cubed shall not be liable for a breach of the warranty set forth in Section 8(a) unless: (i) Buyer gives
written notice of the defective Product to Cubed within the Inspection Period; (ii) Cubed is given a reasonable opportunity
after receiving the notice of breach of the warranty set forth in Section 8(a) to examine such Product and Buyer (if requested
to do so by Cubed) returns such Product to Cubed’s place of business at Cubed’s cost for the examination to take place
there; and (iii) Cubed is able to verify Buyer’s claim that the Product is defective.
(d) Cubed shall not be liable for a breach of the warranty set forth in Section 8(a) if: (i) Buyer makes any
further use of such Product after giving such notice; (ii) the defect arises because Buyer failed to follow Cubed’s oral or
written instructions as to the storage, installation, commissioning, use or maintenance of the Product; or (iii) Buyer alters or
repairs such Product without the prior written consent of Cubed.
(e) Subject to Section 8(c) and Section 8(d) above, with respect to any such Product during the Warranty
Period, Cubed shall, in its sole discretion, either: (i) repair or replace such Product (or the defective part) or (ii) credit or
refund the price of such Product at the pro rata contract rate provided that, if Cubed so requests, Buyer shall, at Cubed’s
expense, return such Product to Cubed.
(f) THE REMEDIES SET FORTH HEREIN SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY
AND CUBED’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH HEREIN,
9. Limitation of Liability.
(a) IN NO EVENT SHALL CUBED BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF
USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL,
INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH
OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH
DAMAGES WERE FORESEEABLE AND WHETHER OR NOT CUBED HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS
(b) IN NO EVENT SHALL CUBED’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO
THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, THE TOTAL OF THE AMOUNTS PAID TO CUBED FOR THE PRODUCTS
10. Permitted Use; Compliance with Law.Buyer shall not use the Product for the conduct of, or assistance to the conduct of, activities such as wars, harmful actions against people, unlawful behaviors, genocide and breach of any fundamental human right or to provide operational or logistical support to armed forces or hostilities. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms. Buyer shall comply with all export and import laws of all countries involved in the sale of the Product under these Terms or any resale of the Product by Buyer. Buyer assumes all responsibility for shipments of Product requiring any government import clearance. Cubed may terminate these Terms if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Product. Buyer is responsible for all health and safety relating to the persons who are operating the Products and Buyer must comply with all applicable health and safety legislation and all applicable regulations, advisory standards and codes of practice. Buyer must ensure that Products are maintained and operated in accordance with all applicable health and safety laws. No method of transmission over the Internet, or method of electronic storage, is fully secure. While we use reasonable efforts to protect your personal information from the risks presented by unauthorized access or acquisition, we cannot guarantee the security of your personal information.
11. Export Control.
The Products provided under these Terms may be subject to governmental restrictions on (i) exports from the U.S.; (ii) exports from other countries in which such Products and technology included therein may be produced or located; (ii) disclosures of technology to foreign persons; (iii) exports from abroad of derivative products thereof; and (iv) the importation and/or use of such Products and included therein outside of the United States or other countries (collectively, “Export Laws”). Buyer shall comply with all Export Laws. Buyer shall immediately inform Cubed in case of reselling the Products. Cubed may be required by law to disclose information about the Buyer and/or the end user or application.
“Confidential Information” means these Terms, pricing and technical information related to the
Products, as well as all confidential and proprietary information of Cubed, including financial, technical, design information of any
nature whatsoever, provided that such information is marked “confidential” or “proprietary” or any other similar term or in relation to
which its confidentiality should by its nature be inferred. Confidential Information does not include information that is: (i) rightfully in
the receiving party’s possession without prior obligation of confidentiality from the disclosing party, (ii) within the public domain; (iii)
rightfully furnished to the receiving party by a third party without confidentiality restriction; or (iv) independently developed by the
receiving party without reference to the disclosing party’s Confidential Information. To the extent Buyer receives Confidential
Information, Buyer agrees to (i) use such Confidential Information only as expressly authorized by Cubed; and (ii) protect from
disclosure to any third parties without Cubed’s express, written consent.
As used herein, “Intellectual Property” means any and all present and future intellectual property
rights in the Products throughout the world, including without limitation: (i) any patent, copyright (including future copyright), trade mark
(whether registered or unregistered) including the trade marks, software, design, circuit layout right, trade, business or company name
or other proprietary rights; and (ii) all present and future rights in an invention, discovery, trade secret, know-how, concept, idea, data
or formula and rights in information, including any serendipitous discoveries, granted by law or equity from time to time under the law
of any jurisdiction. Buyer acknowledges and agrees that all Intellectual Property is owned by Cubed. Nothing in these Terms shall be
read to confer any rights to the Intellectual Property to Buyer.
14. Force Majeure.
Except for the payment of fees, neither party shall be liable under these Terms because of a
failure or delay in performing its obligations due to any force majeure event, including strikes, riots, insurrection, terrorism, fires, natural
disasters, acts of God, war, governmental action, epidemics or pandemics, or any other cause which is beyond the reasonable control
of such party. In case the Buyer is prevented from making timely payment of the fees due under these Terms by an event of force
majeure as defined here above, Buyer shall make all efforts to immediately notify Cubed of such delay and parties shall agree on a
reasonable additional delay for payment.
15. Governing Law.
These Terms shall be governed by and construed in accordance with the substantive laws of the
State of New York, without regard to any conflicts of laws principles. The U.N. Convention on Contracts for the International Sale of
Goods does not apply to these Terms.
These Terms (i) are the complete statement of the agreement of the parties with regard to the
subject matter hereof. Cubed may identify Buyer as a purchaser of its Products in any publication, press release, or other written or
oral presentation to third parties unless Buyer expressly indicates otherwise to Cubed in writing. If any term (or part of a term) within
these Terms is deemed by a court of competent jurisdiction to be void or unenforceable, that term (or part) shall be severable from
the remainder of these Terms and, to the extent possible, shall be reformed in such a way so as to permit it to be maximally enforced
under applicable law. These Terms do not create a partnership, joint venture or agency relationship between Cubed and Buyer.
Cubed Laboratories is headquartered in the United States of America. If you are from a country outside
of the United States of America with laws governing data collection, use, and disclosure that may differ
from U.S. law and you provide personal information to us, please note that any personal information that
you provide to us may be transferred to the United States of America. By providing your personal
information, where applicable law permits, you hereby specifically and expressly consent to such transfer
and processing and the collection, use, and disclosure set forth herein or in any applicable terms of service.