THIS END USER AGREEMENT ("AGREEMENT") IS BETWEEN GIBSON LABORATORIES INC (THE "COMPANY
OR GIBSON" ), AND AN INDIVIDUAL, CORPORATION OR OTHER ENTITY (THE
"END USER" OR "YOU"). THIS AGREEMENT GOVERNS THE TERMS UNDER WHICH THE END USER
MAY PURCHASE GIBSON'S PRODUCTS ("PRODUCTS") FROM THE COMPANY, ITS DISTRIBUTORS (THE
"SUBLICENSEES") OR RESELLERS PURSUANT TO A SUBLICENSE AGREEMENT. THE PRODUCTS
INCLUDE MATERIALS AND TRADEMARKS OWNED BY THE AMERICAN TYPE CULTURE COLLECTION
("ATCC") WHICH HAS GRANTED A LICENSE TO THE COMPANY FOR THIS PURPOSE. THE
COMPANY IS WILLING TO GRANT END USERS THE RIGHT TO PURCHASE AND USE THE
COMPANY’S PRODUCTS ONLY IF THE END USER ACCEPTS ALL OF THE TERMS OF THIS
AGREEMENT.
IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE
THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. BY CLICKING
THE "I AGREE" BUTTON BELOW AND ACCESSING AND USING THE PRODUCTS, THE END USER
ACKNOWLEDGES THAT THE END USER HAS READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE
TO BE BOUND BY IT. IF THE END USER DOES NOT AGREE TO ANY OF THE TERMS IN THIS
AGREEMENT, THE END USER SHOULD NOT UTILIZE THE PRODUCTS.
- SCOPE OF USE
. You may only use the Products provided to you for
quality control in your laboratory. The Products are not intended for use
in humans. End User agrees that Products designated as Biosafety Level 2 or 3
constitute known pathogens and that other Products not so designated and
Replicates or Derivatives may be pathogenic under certain conditions. End User
assumes all risk and responsibility in connection with the receipt, handling,
storage, disposal, transfer and use of the Products including without
limitation taking all appropriate safety and handling precautions to minimize
health or environmental risk. End User agrees that any activity undertaken
with the Products and Replicates or Derivatives will be conducted in
compliance with all applicable guidelines, laws and regulations.
"Replicate" means any biological or chemical material that represents a
substantially unmodified copy of the Products such as, but not limited to,
material produced by growth of microorganisms. "Derivative" means any material
created from the Products that constitutes an unmodified functional sub-unit
from the Products or is substantially modified to have new properties.
- RESTRICTIONS
. End User may not use, copy, modify or transfer the
Products, Replicates or Derivatives to others in whole or in part except as
expressly provided in this Agreement. The Products contain trade secrets and
intellectual property of ATCC and Gibson Laboratories and the End User may not reverse
engineer, replicate, alter, or tamper with the Products, their Replicates or
Derivatives, or authorize any Third Party to do any of the foregoing. The
rights granted hereunder to the End User are personal to the End User, and any
attempt by the End User to transfer any of the rights, duties, or obligations
hereunder is void and shall terminate this Agreement. An End User may not
rent, lease, loan, resell for profit, or distribute the Products, Replicates
or Derivatives or any part thereof in any way.
- OWNERSHIP
. The Products are the property of Gibson Laboratoreies and ATCC, and may be
protected by patent, copyright, trade secret, trademark and other laws. The
Products are provided to the End User for use only under the terms of this
Agreement, and the Company and ATCC reserve all rights not expressly granted
to the End User.
- TERMINATION
. This Agreement will terminate immediately without notice
to the End User if the End User breaches a term of this Agreement, or if the
End User does not pay the Company, its distributor or sublicensee, the full
purchase price in accordance with the purchase contract. Further, in the event
of a termination or expiration of any agreement between the Company and ATCC
of all or a part of the Products, the End User’s right to access and use the
Products may also terminate or expire.
- WARRANTY DISCLAIMER
. Gibson Laboratories warrants that any Products shall meet the
specifications on the Product information sheet, Certificate of Analysis,
and/or catalog description until the expiration date on the Product label. The
exclusive remedy for breach of this warranty is at Gibson Laboratories option, (a) refund of
the fee paid by End User for such Product (exclusive of shipping and handling
charges), or (b) replacement of the Product. The exclusive remedy applies
under the condition that End User handles and stores Products as described in
the Product insert. To obtain the exclusive remedy, End User must report the
lack of viability to Gibson's Technical Service Department within the warranty
period. EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE PRODUCTS AND ANY TECHNICAL
INFORMATION AND ASSISTANCE PROVIDED BY GIBSON LABORATORIES ARE PROVIDED "AS IS", WITHOUT
WARRANTIES BY GIBSON LABORATORIES OR ATCC OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TYPICALITY, SAFETY, ACCURACY, AND NON-INFRINGEMENT.
- COMPLIANCE WITH LAW
. END USER IS SOLELY RESPONSIBLE FOR COMPLIANCE
WITH ALL APPLICABLE FOREIGN AND DOMESTIC, FEDERAL, STATE, AND LOCAL STATUTES,
ORDINANCES, AND REGULATIONS.
- EXPORT LAW
. The Company’s Products are subject to U.S. export control
laws and may be subject to export or import regulations in other countries.
Unless specifically authorized in writing by the Company prior to any access,
the End User agrees not to export the Products under any circumstances
whatsoever. In any case, the End User will indemnify and hold, Sublicensee,
the Company and ATCC harmless from any and all claims, losses, liabilities,
damages, fines, penalties, costs and expenses (including attorney fees)
arising from, or relating to, any breach by the End User of the End User’s
obligations under this section.
- LABORATORY QUALIFICATION ASSURANCE
. The microorganisms and subsequent
growth on culture media deriving from the Products, Replicates or Derivatives
are considered to be bio-hazardous. Government agencies do regulate the
disposal of these materials. By entering into this End User Agreement, End
User confirms that its laboratory procedures comply with the handling and
disposal of these bio-hazardous materials, and that End User’s laboratory
staff is qualified and properly trained to receive, process and store
lyophilized microorganisms. End User acknowledges that the lyophilized
microorganisms are for in-vitro use only and are used according to their
intended use.
- INDEMNIFICATION
. To the extent permitted under United States Federal
or State law, End User hereby agrees to indemnify, defend and hold
Sublicensee, Gibson Laboratories and ATCC harmless against any Third Party claims, losses,
expenses, and damages (including reasonable attorney’s fees) arising out of or
relating to the use, receipt, handling, storage, transfer, disposal and other
activities related to the Products. Any resolution of a claim subject to this
indemnification agreement will be subject to written consent by Gibson
Laboratories and ATCC.
- LIMITATION OF LIABILITY
. IN NO EVENT WILL GIBSON LABORATORIES OR ATCC BE LIABLE FOR
ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR PRODUCTS (WHETHER IN
CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTE OR OTHERWISE) EVEN IF
GIBSON
LABORATORIES OR ATCC HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT
SHALL GIBSON LABORATORIES'S AND ATCC'S CUMULATIVE LIABILITY EXCEED THE FEES PAID BY END USER
UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF
THE EVENT GIVING RISE TO THE CLAIM. End User agrees that the limitations of
liability set forth in this Agreement shall apply even if a limited remedy
provided hereunder fails of its essential purpose.
- INTELLECTUAL PROPERTY
. Gibson Laboratories and ATCC shall retain ownership of all
right, title and interest in the Products. The Products are subject to the
restrictions noted in the "Scope of Use" section above. End User expressly
acknowledges that Gibson Laboratories retains all right, title and interest in any trademarks
registered or owned by Gibson Laboratories and the Gibson
catalog marks. End User also expressly acknowledges that ATCC retains all
right, title and interest in the ATCC trademark, the ATCC trade name, and the
ATCC catalog marks and any trademarks registered or owned by the ATCC. End
user expressly agrees not to use any of ATCC’s trademarks, the ATCC trademark,
the ATCC trade name or the ATCC catalog marks in any way in connection with
the offering, marketing, promotion, or Sale of any Products, Replicates or
Derivatives without ATCC’s prior written agreement.
- GOVERNING LAW, JURISDICTION AND VENUE
. This Agreement shall for all
purposes be governed by and interpreted in accordance with the laws of the
State of Kentucky as those laws are applied to contracts entered into, and
to be performed entirely in Kentucky by Kentucky residents. Any legal
suit, action or proceeding arising out of, or relating to this Agreement,
shall be commenced in a federal court in Frankfurt, Kentucky or in the
state court in Fayette County, Kentucky, and each Party hereto irrevocably
submits to the personal and exclusive jurisdiction and venue of any such court
in any such suit, action or proceeding and waives any right which it may have
to transfer or change the venue of any such suit, action or proceeding, except
that in connection with any suit, action or proceeding commenced in a state
court, each Party retains whatever right it may have to remove such suit,
action or proceeding to federal court in Kentucky. The parties agree that
the United Nations Convention or Contracts for the International Sale of Goods
is specifically excluded from application to this Agreement.
- WAIVER.
No failure to enforce any term of this Agreement shall
constitute a waiver of such term in the future.
- ASSIGNMENT.
Neither this Agreement nor any of the End User’s rights or
obligations hereunder may be assigned by the End User in whole or in part
without the prior written approval of the Company and ATCC. Any other
attempted assignment shall be null and void.
- SEVERABILITY.
If any part of this Agreement is for any reason found to
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions of this Agreement shall not be
affected.
- COMPLETE AGREEMENT.
This Agreement, together with the Company’s
Product information sheet, Certificate of Analysis, and/or catalog
description, is the complete and exclusive statement of the agreement between
the Company and the End User, and supersedes any proposal or prior agreement,
oral or written, and any other communications between the parties in relation
to the subject matter of this Agreement. No waiver, alteration or modification
of this Agreement shall be valid unless made in writing and signed by a
corporate officer of the Company. Amendment of any provision concerning ATCC’s
rights as a Third Party beneficiary shall also require the written approval of
ATCC.
END USER
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