Anvil Diagnostics
These Terms of Sale (“Terms”) govern all uses and purchases of products, reagents, kits, and related materials (collectively, “Products”) from Anvil Diagnostics, Inc. (“Anvil,” “we,” “us” or “our”), by the purchasing party (“Buyer”). “Service” means the Anvil web-based analytical platform made available to Buyer in connection with Product purchases, as further described in Section 5. By placing an order for Products or using Products, Buyer acknowledges and agrees to be bound by these Terms. Any terms or conditions in Buyer’s purchase order or other documentation that conflict with or add to these Terms are hereby rejected and shall have no force or effect unless expressly agreed to in writing by an authorized representative of Anvil.
Buyer’s order of Products from us or use of the Products may be subject to separate purchase terms and conditions or similar agreements entered into between Buyer and Anvil at the time of purchase or procurement, which may supplement or, to the extent expressly stated therein, supersede these Terms and which may include purchasing or other requirements applicable to Buyer’s use of the Products.
All orders are subject to acceptance by Anvil. Anvil reserves the right to reject any order for any reason. An order is accepted when Anvil issues a written order confirmation. Once Buyer has placed an order, Buyer cannot cancel or change the order without Anvil’s written consent.
Prices are as set forth in Anvil’s then-current price list or as otherwise agreed in a written quote, order confirmation, service agreement or invoice, as applicable. Prices exclude taxes (including VAT), duties, levies or other government fees that may apply to an order. Prices also exclude shipping, handling and any other costs unless otherwise stated. Anvil reserves the right to change prices at any time without notice; however, price changes will not affect accepted orders.
Payment is due within thirty (30) days of invoice unless otherwise agreed by Anvil in writing. Each order is a separate transaction, and Buyer may not off-set payments, including from one order against another. We reserve the right to require Buyer to make full or partial payment in advance for any order.
Anvil reserves the right, without affecting Anvil’s other rights, to charge interest on overdue amounts at the lesser of 1.5% per month or the maximum rate permitted by applicable law. Buyer shall bear all costs of collection, including reasonable attorneys’ fees. Anvil reserves the right to cancel or stop delivery of Products in transit and withhold shipments in whole or in part if Buyer does not pay us when due, or if Buyer otherwise does not perform Buyer’s obligations under these Terms.
All Products are labeled and sold FOR RESEARCH USE ONLY (RUO) AND NOT FOR USE IN DIAGNOSTIC PROCEDURES. Products have not been approved, cleared, or licensed by the United States Food and Drug Administration (“FDA”) or any equivalent non-U.S. regulatory authority for any clinical, diagnostic, or patient management purpose.
Buyer acknowledges and agrees that: (i) Products are not intended for use in the diagnosis, prevention, monitoring, treatment, or alleviation of any disease or condition in humans; (ii) no claim or representation is made by Anvil that any Product is suitable or has been validated for any clinical or diagnostic purpose; and (iii) if Buyer elects to use Products in any manner that would subject Buyer, its customers, or any Product to applicable regulatory requirements, Buyer is solely responsible for obtaining all required approvals, clearances, and registrations, and for all associated regulatory compliance.
Buyer shall be solely responsible for the proper storage, handling and use of all Products in accordance with product documentation, standard laboratory practices and applicable regulations. Anvil shall not be liable for any issues arising from improper storage, mishandling or use of Products.
Buyer acknowledges and agrees that the Products, including, without limitation, the contents, composition, and methods of operation of the Products, are proprietary to Anvil and that the Products contain or embody trade secrets of Anvil.
Buyer agrees not to, and agrees not to facilitate, enable, or authorize any third party to, directly or indirectly:
Buyer agrees not to, and agrees not to facilitate, enable, or authorize any third party to, directly or indirectly:
Except as expressly stated in these Terms, no right or license under any intellectual property rights of Anvil is conveyed or implied by the purchase of Products or use of the Service, whether by implication, estoppel, or otherwise. Anvil expressly retains all right, title and interest in and to all intellectual property of Anvil, including, without limitation, patents, trademarks, copyrights and trade secrets related to the Products and the Service.
Buyer agrees not to resell, transfer, or distribute Products or the Service to any third party without the prior written consent of Anvil.
Purchase of Products grants Buyer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service solely for the purpose of analyzing data generated using Products purchased from Anvil. This license is granted at no additional charge as part of the Product purchase. The Service is provided on an “as available” basis, and Anvil does not guarantee uninterrupted or error-free access to the Service.
This license is conditioned upon: (i) Buyer maintaining an active reagent purchase relationship with Anvil, defined as having placed at least one Product order within the preceding twelve (12) months; and (ii) Buyer’s acceptance and compliance with the Anvil Terms of Service, available at anvildiagnostics.com/terms-of-service, which are incorporated herein by reference.
This license will automatically terminate upon the earlier of: (i) Buyer’s failure to comply with these Terms or the Anvil Terms of Service; or (ii) Buyer’s failure to maintain an active reagent purchase relationship as defined in Section 5.2. Anvil will provide Buyer with at least ten (10) days’ written notice prior to terminating access under this Section 5.3(ii), during which Buyer may reinstate access by placing a qualifying Product order. Upon termination, Anvil shall have no obligation to retain, return, or provide access to any data or outputs stored within the Service.
Anvil retains all right, title, and interest in and to the Service and all underlying software, algorithms, models, and intellectual property. The Service is licensed, not sold. No title to or ownership of the Service is transferred to Buyer. Anvil reserves the right to modify, update, suspend, or discontinue the Service (or any part thereof) at any time, with or without notice, and shall not be liable to Buyer for any such modification, suspension, or discontinuation.
The license granted under this Section 5 does not transfer with any resale, transfer, or assignment of Products. Any attempted transfer of this license without Anvil’s prior written consent is void.
If, during the ninety (90) calendar days following delivery to Buyer (the “Warranty Period”) a Product fails to perform as described in the applicable Product insert when used and stored in accordance with Anvil’s written instructions prior to the expiration date stated on the Product label, Buyer’s sole, exclusive, and absolute remedy is, at Anvil’s sole election, replacement of the non-conforming Product or a refund of the purchase price paid for that Product. To be eligible for this remedy, Buyer must notify Anvil in writing within the Warranty Period, provide reasonable documentation of the failure, and, if requested by Anvil, return the non-conforming Product to Anvil at Buyer’s expense.
The foregoing warranty (i) extends only to the Buyer, the original purchaser of the Products, and cannot be transferred and (ii) does not apply to normal wear and tear, accident, disaster or force majeure, or Buyer’s misuse, fault or negligence.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6.1, ANVIL HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ANVIL MAKES NO WARRANTY REGARDING RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT OR THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO THE ACCURACY, COMPLETENESS, VALIDITY, OR DETERMINACY OF ANALYTICAL OUTPUTS, OR ANY CLAIM OF INACCURATE, INVALID, INCOMPLETE, OR INDETERMINATE RESULTS.
No warranty is made or implied that any Product is suitable for any clinical, diagnostic, or patient management purpose.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANVIL OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, OR SUPPLIERS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF BUSINESS, COSTS OF RETESTING, COSTS OF SUBSTITUTE GOODS OR SERVICES, OR LOSS OF GOODWILL, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (including negligence), STRICT LIABILITY, WARRANTY, OR OTHERWISE), ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, ANY PRODUCT, OR THE SERVICE, WHETHER OR NOT ANVIL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANVIL’S TOTAL AND CUMULATIVE LIABILITY TO BUYER ARISING OUT OF OR RELATED TO THESE TERMS, ANY PRODUCT, OR THE SERVICE SHALL NOT EXCEED THE AMOUNT PAID BY BUYER TO ANVIL FOR THE SPECIFIC PRODUCT(S) GIVING RISE TO THE CLAIM.
THE PARTIES ACKNOWLEDGE and agree THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 7 ARE AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH ANVIL WOULD NOT HAVE ENTERED INTO THESE TERMS.
Buyer shall defend, indemnify, and hold harmless Anvil and its officers, directors, employees, and affiliates from and against any claims, demands, actions, investigations, damages, losses, liabilities, settlements, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to:
Title to Products (excluding the Service, as to which Anvil retains title) and risk of loss shall pass to Buyer upon delivery to the carrier at Anvil’s shipping location (FCA Anvil’s facility, Incoterms 2020).
Buyer shall inspect the Products upon receipt and notify Anvil of any non-conformance with the Product’s applicable specifications within five (5) days of delivery. Anvil must pre-authorize all Product returns. Anvil will approve the replacement or refund for a Product that is damaged or defective on receipt, provided that Buyer contacts Anvil within such five (5) day period and provided such damage or defect has not been caused by any failure by Buyer or the carrier to handle or store the Product using reasonable care or as otherwise indicated on the label or written instructions of Anvil. If Buyer does not contact Anvil within the five day period, we will deem the Product to be accepted. We do not credit shipping charges and Buyer will not receive credit for any Product returned without Anvil’s prior consent.
We may, in our discretion, make partial shipments and invoice each shipment separately. Our shipping dates are approximate only, and we will not be liable for any loss or damages resulting from any delay in delivery. Buyer may not refuse delivery or otherwise be relieved of any obligations as the result of such delay.
Buyer agrees to maintain in confidence all non-public information disclosed by Anvil in connection with the Products, including but not limited to Product formulations, specifications, pricing, and technical data, and to use such information solely for the purpose of using the Products in accordance with these Terms.
These Terms shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law principles.
Any dispute arising out of or related to these Terms shall be resolved by binding arbitration under the rules of the American Arbitration Association, conducted in Cambridge, Massachusetts. Judgment on the arbitration award may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, Anvil reserves the right to seek injunctive or other equitable relief in any court of competent jurisdiction to prevent actual or threatened infringement, misappropriation or violation of Anvil’s intellectual property, confidential information, or any of the use restrictions set forth in Sections 3, 4, or 5 of these Terms without the necessity of proving actual damages or posting any bond or other security. To the maximum extent permitted by applicable law, any action arising under these Terms must be brought within one year from the date that the cause of action arose. The U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
These Terms, together with any applicable order confirmation and the Anvil Terms of Service, constitute the entire agreement between the parties with respect to the purchase and use of Products and the Service and supersede all prior agreements, representations, and understandings.
Anvil reserves the right to amend these Terms at any time by posting updated Terms on its website or by providing written notice to Buyer. Continued purchase of Products following such notice constitutes acceptance of the amended Terms.
Buyer may not assign these Terms or any rights hereunder without Anvil’s prior written consent. Anvil may assign these Terms without consent in connection with a merger, acquisition, or sale of all or substantially all of its assets. Any purported assignment in violation of this Section is void.
If any provision of these Terms is found to be invalid or unenforceable, such provision shall be reformed to the minimum extent necessary to make it valid and enforceable, and the remaining provisions shall remain in full force and effect.
Failure by Anvil to enforce any provision of these Terms shall not constitute a waiver of Anvil’s right to enforce that provision or any other provision in the future.
Anvil shall not be liable for any delay or failure to perform resulting from causes beyond its reasonable control, including, but not limited to, acts of God, supply chain disruptions, or government actions.