CANCER DIAGNOSTICS, INC.'S TERMS AND CONDITIONS

 

These Cancer Diagnostic, Inc. ("CDI") Terms and Conditions shall apply to all products, including quotations made and purchase orders accepted, and any other products manufactured, furnished, supplied by, or ordered from, Cancer Diagnostics, Inc. ("Products").

 

1. Payment. For all orders, the method and timing of payment shall be determined by CDI in its sole and absolute discretion. CDI may agree in writing that payment for standard orders is due Net 30. If CDI agrees that payment is due Net 30, full payment shall be due within thirty days of the date of the invoice or thirty (30) days from the date of receipt by customer of any of the Products ordered, whichever is earlier. CDI shall have the right to require CBD (Cash Before Delivery) from any customer at anytime for any reason or for no reason. CDI shall have the right to change payment terms from Net 30 to CBD at anytime for any reason or for no reason. Unless otherwise agreed in writing by CDI, payment for all custom orders shall be due as follows: fifty percent (50%) of the price is due when the Product is ordered by customer; the remaining fifty percent (50%) of the price is due prior to shipping the Product to customer. If any amount of the purchase price is not paid to CDI when due, customer agrees to pay interest thereon at the rate of eighteen percent (18%) per annum from the date due until paid.

 

2. Shipping. Unless otherwise agreed in writing by CDI, delivery shall be made F.O.B. shipping point. (CDI will prepay the freight on all shipments to customer and will add freight charges to invoice.) In such event, customer is responsible for risk of loss after delivery and all claims by customer for loss or damage occurring after delivery must be brought against the carrier and not CDI. In the event CDI arranges for shipping and freight is paid by the customer, delivery shall be made F.O.B. destination. Regardless of whether delivery is F.O.B. shipping point or F.O.B. destination, CDI shall not be liable or responsible for any failure or delay in delivering Products, including any consequential, special, or incidental damages customer may suffer as a result of such delay. In the case of F.O.B. destination, CDI's liability to customer shall be limited to the liability of the carrier (contracted by CDI to ship the Product to customer) to CDI.

 

3. Return Policy. For standard orders, which are not caused by unsatisfactory performance, return requests must be made within 30 days of delivery. Please obtain a Return Goods Authorization number from customer service prior to the return of a product. Customer may return Products ordered; provided, however, that (1) customer pays CDI a 25% restocking fee, (2) customer pays for all shipping, and (3) any Products returned must be in their original, and except for a single box opened for inspection purposes, unopened box(es). In no event shall customer be entitled to return and CDI shall not be obligated to accept any custom ordered Products, any discontinued Products, any Products for which customer received a discount or rebate of any nature, or any Products which have been installed. In exchange for any portion of the Products properly returned by customer and accepted by CDI, customer shall be entitled to a product credit in an amount equal to the price paid (or pro rata portion thereof) of the returned and accepted Products. In no event shall CDI be responsible to provide, and customer shall not be entitled to receive, a cash refund.

 

4. Limited Warranty. Customer understands and agrees that Products are covered only by the limited warranty applicable to the products purchased ("Applicable Limited Warranty"). No other warranty is provided. Copies of the Applicable Limited Warranties are available to customer at www.cancerdiagnostics.com under TERMS OF USE link and have been provided to customer. Other than the Applicable Limited Warranty, customer warrants and represents that it is not relying on any promise, warranty, or representation regarding the Products and that no promise, warranty, or representation constitutes the basis of the bargain for the purchase of Products.

 

5. LIMITATION OF LIABILITY. CDI SHALL HAVE NO LIABILITY UNDER ANY CIRCUMSTANCES FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF CDI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF CDI, REGARDLESS OF THE BASIS OF THE CLAIM, SHALL BE LIMITED TO THE CONSIDERATION ACTUALLY PAID BY CUSTOMER FOR THE PRODUCTS WHICH GAVE RISE TO THE CLAIM. THIS LIMIT OF LIABILITY IS A MATERIAL TERM OF THIS AGREEMENT AND CDI'S AGREEMENT TO PROVIDE PRODUCTS TO CUSTOMER IS DEPENDENT UPON ITS INCLUSION.

 

6. Warranty and Indemnity. CDI’s products are warranted by CDI against defects in material and workmanship for a period of sixty (60) days from the date of shipment to Customer (“Warranty Period”) unless otherwise specified in writing by CDI to customer. This warranty is extended only to the original customer hereunder and does not apply to (1) Products which have been damaged as a result of neglect, abuse, or accident; (2) Products used in an environment or application for which they were not designed, (3) Damage occurring during shipment or delivery via common carrier (all claims must be brought against the carrier and not CDI), (4) Products which have been modified, serviced, altered or repaired by someone not authorized by CDI, (5) Product damage resulting from lack of technical skills, experience or competence, or causes other than Product defects. Products may vary in packaging from time to time, or other finishing aspects represented in any sample may differ from the product actually delivered. CDI in its sole and absolute discretion may update packaging configurations or choose to update raw materials or finished good that are substantially equivalent to those represented in CDI’s catalog(s) or on CDI’s website. ALL PRODUCTS MUST BE USED ONLY FOR THEIR INTENDED PURPOSES AND FAILURE TO DO SO WILL VOID ALL WARRANTIES. Customer agrees to indemnify and hold harmless CDI from and against any damage, liability, claim, expense, cost, or attorney's fees arising out of or relating to any claim against CDI by end user of CDI's products referenced in the Pro Forma Invoice or Invoice or on CDI’s website under TERMS OF USE at http://www.cancerdiagnostics.com

 

7. Governing Law. This agreement shall be interpreted in accordance with the laws of the State of California without regard to any conflict of laws.

 

8. Forum Selection. Customer hereby submits to the exclusive jurisdiction of the state of California with regard to any dispute of any nature with CDI. CDI and customer agree that the Superior Court of California shall have exclusive jurisdiction to adjudicate any claim or controversy relating to the Products or these Terms and Conditions.

 

9. Entire Agreement. The Pro Forma Invoice, Invoice, these Terms and Conditions, and the Applicable Limited Warranty set forth all covenants, agreements, conditions, and understandings between the parties concerning the Products and there are no other such covenants, agreements, conditions, or understandings between the parties, either oral or written. This agreement is intended solely for the benefit of the parties herein and is not intended to benefit any third person or party.

 

10. Severability. If any term, covenant, condition or provision of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full force and effect and shall in no way be affected, impaired or invalidated.

 

11. Venue. The parties acknowledge and agree that these Terms and Conditions were entered into in San Diego, California, and all payments for Products shall be made in Durham, NC or wherever CDI designates on invoice. The parties further agree that all actions or proceedings arising in connection with this agreement shall be tried and litigated exclusively in the County of San Diego, State of California.

 

12. Time Limit for Bringing Suit. Any action arising out of or relating to the Products or these Terms and Conditions must be commenced within one (1) year after the claim arises, but in no event more than two (2) years after customer purchased the Products.

 

13. Waiver. The failure of either party to enforce at any time any of the provisions of these Terms and Conditions or to require at any time performance by the other party of any of such provisions, shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of these Terms and Conditions or any parts thereof, or the right of either party thereafter to enforce each and every provision.

 

14. No Authority to Bind. Customer has no authority and shall not hold itself out as having authority to bind CDI to any contract, term, provision, representation or warranty. Customer shall be solely responsible for any statements, representations, or warranties made by Customer or its agents, employees and representatives.

 

15. Modifications. These Terms and Conditions may be amended, modified, or otherwise changed by Cancer Diagnostics, Inc., in its sole and absolute discretion, at any time. Changes to these Terms and Conditions will be published on CDI's web site at www.cancerdiagnostics.com. Customer acknowledges and agrees that the Terms and Conditions published on CDI's web site on the date the Pro Forma Invoice is signed, the Order is confirmed by customer or the Products are shipped, whichever date is earlier, shall govern.