Inspire Diagnostics Terms & Conditions

Terms & Conditions

This Agreement is not subject to partial acceptance except by mutual agreement of Client and Inspire Diagnostics, LLC (“Company”).  Company shall sell to Client, and Client shall purchase from Company, the Services described in this Agreement.  COVID-19 tests and analyzers distributed by Company (referenced hereafter as “Proprietary Technology”) shall be used by Company to perform the Services.  Company and Client may be referenced herein individually as a “Party” and collectively, as the “Parties.”  The Effective Date of this Agreement shall be the date of the final signature of a Party.

  1. Payment Terms. Client shall pay the applicable deposit upon execution of this Agreement.  All other invoices will be due upon presentation.  Client shall make all payments hereunder by wire transfer or check, and in U.S. dollars. Client shall pay interest on all late payments at the rate of one percent (1%) per month, calculated daily and compounded monthly. Client shall reimburse Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
  2. No Setoff. Client shall not, and acknowledges that it will have no right, under the Agreement, any other agreement, document, or law, to withhold, offset, recoup, or debit any amounts owed (or to become due and owing ) to Company or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Company or its affiliates, whether relating to Company’s or its affiliates’ breach or non-performance of this Agreement or any other agreement between Client or any of its affiliates, and Company or any of its affiliates, or otherwise.
  3. Warranty. ALL SERVICES, MATERIALS, PROPRIETARY TECHNOLOGY, AND DOCUMENTATION, IF ANY, ARE PROVIDED TO CLIENT “AS IS” AND COMPANY MAKES NO WARRANTY OR GUARANTEE AS TO THEIR USE OR PERFORMANCE, OR GUARANTEE THAT ANY USE OF PROPRIETARY TECHNOLOGY WILL BE FREE FROM ERRORS OR DEFECTS OR THAT PROPRIETARY TECHNOLOGY WILL IDENTIFY ALL POSSIBLE THREATS OR INFECTIONS OF THE COVID-19 VIRUS.  COMPANY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES OF SATISFACTORY QUALITY, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  Company warrants that on the date of shipping, the Proprietary Technology used to perform the Services are allowed to be administered under the enforcement discretion policy of the U.S. Food and Drug Administration (“FDA”).  Company makes no warranty that the FDA’s enforcement discretion policy will remain in effect during the term of this Agreement.  Client understands and accepts that Company will stop performing the Services when or if the FDA changes its enforcement discretion policy.  Client understands that the FDA could change its enforcement discretion policy at any time and unpredictably.
  4. Limitation of Liability.  COMPANY, AND COMPANY’S DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS, AFFILIATES, REPRESENTATIVES AND AGENTS (TOGETHER “COMPANY AND AFFILIATES”) SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, WORK STOPPAGE, DEVICE MALFUNCTIONS, CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, OR ANY OTHER LEGAL THEORY (TOGETHER “INDIRECT DAMAGES”).  COMPANY AND AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES INCURRED BY CLIENT IN THE EVENT THAT ANY INDIVIDUAL TEST CANDIDATE, CLIENT EMPLOYEE, OR ANY INDIVIDUAL THAT RECEIVES A TEST UNDER THIS AGREEMENT BECOMES INFECTED WITH THE  COVID-19 VIRUS, REGARDLESS OF HOW THE INFECTION IS ACQUIRED.  COMPANY AND AFFILIATES SHALL NOT BE RESPONSIBLE FOR OR LIABLE FOR ANY CONTACT TRACING, QUARANTINES, ISOLATION OR ANY MEANS OR METHOD OF TREATMENT OR PREVENTION OF THE  COVID-19 VIRUS.  IN NO EVENT SHALL COMPANY BE LIABLE FOR THE FAILURE OF CLIENT TO TAKE THE CORRECTIVE ACTIONS IDENTIFIED IN ANY REPORTS OR FOR ANY OTHER ACTIONS TAKEN BY CLIENT.  IN NO EVENT SHALL AGGREGATE LIABILITY OF COMPANY FOR CLAIMS ARISING WITH RESPECT TO THE SERVICES OR ANY BREACH HEREUNDER EXCEED THE TOTAL FEES AND CHARGES PAID BY CLIENT FOR SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.  No action against Company arising out of this Agreement may be brought by Client more than one (1) year after the cause of action arose.
  5. Indemnification. Client shall indemnify, defend, and hold harmless Company and its officers, directors, managers, members, partners, employees, agents, representatives, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of  recovering any paid-out damages by Indemnified Party from any judicial order awarded against Indemnified Party in a final non-appealable judgment, relating to, arising out of or resulting from any claim of Client’s students, employees or any other third party arising out of or occurring in connection with the Services or Client’s negligence, willful misconduct, or breach of this Agreement. Client shall not enter into any settlement without Company’s or Indemnified Party’s prior written consent.
  6. Confidential Information and Obligation of Confidentiality.  Confidential Information shall include, but shall not be limited to, the following information, data, or property of Company (together known as the “Confidential Information”): intangible personal property; technical information, including research, design, results, techniques, and processes; know-how; and business information, including project, financial, accounting and personnel information, business strategies, plans and forecasts, Company lists, Company information and sales and marketing plans, efforts, information, and data.  Failure by Company to mark any of the Confidential Information as confidential or proprietary shall not affect its status as Confidential Information under the terms of this Agreement. Client agrees to treat all Confidential Information in the following manner:  Client recognizes and acknowledges that the Confidential Information is a valuable, special, and unique asset of Company.  As a result, both during the term of this Agreement and thereafter, Client shall not, without the prior written consent of Company, for any reason, either directly or indirectly divulge to any third party or use for its own benefit, or for any purpose other than the exclusive benefit of Company, any Confidential Information revealed, obtained, or developed during the term of this Agreement.  Client will treat the Confidential Information as strictly confidential and will not directly or indirectly disclose, publish, communicate, or make available Confidential Information, or allow it to be disclosed, published, communicated, or made available, in whole or part, to any entity or person whatsoever (including employees or contractors of Company) not having a need to know, and authority to know and to use the Confidential Information in connection with the Services.  Client shall not make, retain, remove, and/or distribute any copies of any Confidential Information for any reason whatsoever, except as may be necessary in cooperation with Company.  Upon the termination of this Agreement, Client shall return to Company all originals and copies of the Confidential Information then in its possession or under its control.  In addition, Client shall delete any and all of the foregoing from any electronic, optical, magnetic, or other storage and/or retrieval device and certify the same to Company.   Nothing contained herein shall restrict the Client’s ability to make such disclosures during the term of this Agreement as may be necessary to the effective and efficient discharge of the Services or as such disclosures may be required by law.  In the event Client is required by legal or regulatory process to disclose the Confidential Information of Company, Client shall provide to Company prompt written notice of such requirement, to the extent legally permissible, so that Company may seek a protective order or other appropriate remedy and Client shall provide reasonable cooperation therewith. Regardless of whether such protective order or other remedy is obtained, Client shall disclose only that part of the Confidential Information that is legally required to be disclosed.  The obligation of Client not to disclose Confidential Information pursuant to this Agreement shall be maintained for a period of two (2) years from the date the Client learns of the Confidential Information, except with respect to trade secrets, which will be protected by Client for as long as the confidentiality of such trade secrets is maintained. Client acknowledges that the unauthorized use or disclosure of the Confidential Information could cause irreparable harm to Company and that monetary damages would be inadequate compensation for any breach of this Agreement.  Accordingly, Client agrees that Company shall be entitled to seek injunctive relief or other equitable relief in addition to any other remedy they may have at law or in equity against the threatened breach of this Agreement or the continuation of any such breach.
  7. Proprietary Rights, Ownership and Security.  All right, title, and interest in and to Confidential Information shall be and remain the sole and exclusive property of Company.   Client acknowledges and agrees that all right, title and interest in and to any and all writings, works of authorship, technology, documents, inventions, discoveries, ideas, developments, information, computer programs or instructions (whether in source code, object code, or any other form), documentation, algorithms, formulae, plans, memoranda, tests, research, designs, innovations, systems, analyses, specifications, models, data, diagrams, flow charts, advertising materials, and/or techniques (whether patentable or non-patentable or whether reduced to written or electronic form or otherwise), and all tangible embodiments thereof, that Company creates, makes, conceives, discovers, or develops, while performing the Services, whether during working hours or at Company’s facility or at any other time or location, shall be the sole and exclusive property of Company.  Client also specifically agrees that it will not reverse engineer, disassemble, or decompile any element of the proprietary systems of Company, with emphasis on Company, or any prototypes, software or other tangible objects that embody the Confidential Information and that are provided to the Client under this Agreement.
  8. Termination. Either Party may terminate this Agreement immediately upon written notice to the other Party under any of the following circumstances, each of which shall constitute a material breach of this Agreement:  (i) the other Party fails to cure any default hereunder within thirty (30) days from the date of receipt of notice of default; (ii) the other Party makes an assignment for the benefit of creditors (other than solely as an assignment of moneys due);  (iii) the other Party becomes unable to pay its debts as they become due, unless assurance satisfactory to the terminating Party is provided within thirty (30) days of receipt of its notice of termination hereunder; or (iv) the other Party becomes the subject of a proceeding, whether voluntary or involuntary, under the bankruptcy or insolvency laws of the United States or any other jurisdiction, unless such proceeding is dismissed or withdrawn within forty-five (45) days of the non-defaulting Party’s receipt of the defaulting Party’s notice of termination hereunder.  Client’s failure to timely pay undisputed invoiced Services fees or costs or Company’s failure to timely complete the Services assigned to Company shall constitute material breach.  Company may voluntarily terminate this Agreement upon thirty (30) days written notice to Client.  Client may not terminate this Agreement except as provided above in this Section 8. Upon the expiration or termination of this Agreement, Client shall promptly return to Company, or destroy, as Company may direct, all of Company’s property in Client’s possession.  If Client terminates this Agreement pursuant to this Section 8, Company shall be entitled to payment of all fees for its Services rendered and reasonable expenses incurred in connection with the Services up to the effective date of such termination, and reimbursement amounts of costs due, including but not limited to all costs that were agreed upon in the Fee and Cost Schedule.
  9. Term: The term of this Agreement shall begin on the execution date and will continue until Company completes the Services to be provided, unless otherwise terminated in accordance herein; provided however, that the term shall be no greater than twelve (12) months from the Effective Date.
  10. Independent Contractor. Company is and shall act as an independent contractor in the performance of its obligations under this Agreement. Company’s personnel performing Services are agents, employees, or contractors of Company and are not employees of Client.  Nothing herein shall be deemed to create any other relationship between the Parties, including, without limitation, a partnership, joint venture, employer-employee, or attorney-client relationship.
  11. Choice of Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
  12. Severability. If any term or provision herein is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision herein or invalidate or render unenforceable such term or provision in any other jurisdiction.
  13. Assignment. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.  A Party may assign its rights and/or delegate its duties under this Agreement to a third party only with the prior written consent of the other Party and such written consent will be not unreasonably withheld or delayed, except that an assignment to a third party that controls, is controlled by, is under common control with, or is the legal successor of the assigning Party shall not require such consent.  Any assignment of rights or delegation of duties under this Agreement by a Party will not release that Party from its obligations hereunder.
  14. Compliance with Law. Parties are and will continue to be in compliance with and shall comply with all applicable laws, regulations, and ordinances. Parties have and shall maintain effective and current all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations.
  15. Covenants. Client agrees to discharge its duties hereunder in accordance with the applicable provisions of the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated thereunder, as the same may from time to time be amended (collectively, “HIPAA”) and all applicable state and federal laws governing the privacy and security of medical records.  Client shall provide Company with access to patient specific data to enable Company to comply with its FDA requirements and de-identified patient data to enable Company to perform its obligations regarding post-market surveillance and quality improvement activities.  Client agrees that it is Client’s responsibility to obtain legally effective consent from each individual patient to whom the Proprietary Technology is administered for the collection and use of protected health information and de-identified health information in accordance with applicable law, including, without limitation, HIPAA, The General Data Protection Regulation (EU GDPR) and the California Consumer Protection Act (CCPA).
  16. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement in any forum other than the US District Court for the Central District of California or, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in the City of Los Angeles, California and any appellate court from any thereof.
  17. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same Agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy.
  18. Force Majeure. Any delay or failure of Company to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Company’s control, without Company’s fault or negligence and that by its nature could not have been foreseen by Company or, if it could have been foreseen, was unavoidable (which events may include natural disasters, epidemics, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities).
  19. Survival. All terms which expressly or by their nature survive expiration or earlier termination of this Agreement will survive such expiration, including, but not limited to Sections: 1 (Payment Terms), 2 (No Setoff), 4 (Limitation of Liability),  5 (Indemnification), 6 (Confidential Information and Obligation of Confidentiality), 7 (Proprietary Rights, Ownership and Security), 10 (Independent Contractor), 11 (Choice of Law ), 12 (Severability), 16 (Choice of Forum), 18 (Force Majeure), 19 (Survival), and 23 (Cumulative Remedies).
  20. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and with respect to the Services.  All prior and contemporaneous agreements, representations, statements, negotiations, and understandings, whether written or oral, are superseded by this Agreement.  This Agreement may be modified only in a written document signed by both Parties and made a part of this Agreement.
  21. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth herein, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  22. Amendments. No amendment to or modification of, or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to, or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each Party.
  23. Cumulative Remedies. All rights and remedies provided herein are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise.

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