INTELLICYT iQue SCREENER, Hardware Manual

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2 iQue
®
Hardware Manual: Part Number 10554 Rev C., Introduction
End User Use Agreement for iQue Screening System
1. Parties. This Product Use Agreement (“Agreement”) is between IntelliCyt Corporation, a Delaware corporation with offices at 9620
San Mateo NE, Albuquerque, NM 87113 USA (“IntelliCyt”) and the end user organization (“Customer”) using the proprietary iQue Screening
System and other IntelliCyt products identified in the Invoice (“Products”). Customer’s use of the Product constitutes its acceptance of the
terms and conditions of this Agreement. If the Customer does not agree to the terms and conditions of this Agreement it may not use the
Product.
2. Effective Date. This Agreement is effective as of the date of the Customer’s purchase order. This Agreement is made pursuant to
Customer’s opportunity to review IntelliCyt’s “iQue Screening System Use Terms and Conditions” (via written communications with IntelliCyt)
and (a) Customer’s issuance of a purchase order, (b) and/or Customer’s payment of IntelliCyt’s invoice (the “Invoice”), (c) and/or Customer’s
use of the Product.
3. Nature of Agreement. This Agreement contains all the terms and conditions relating to IntelliCyt’s provision of, and Customer’s use
of the Product. Customer may contract IntelliCyt to receive technical support for the Product, including software upgrades and maintenance.
Such additional services will be pursuant to a separate written agreement.
4. Customer’s Licensed Use of Product. Customer is granted a license to IntelliCyt’s Product for the purposes of processing data for
Customer’s own use. Customer shall not: (i) subcontract or otherwise allow use of the Product and associated documentation by third parties;
(ii) use the Product and associated documentation to analyze, separate, isolate or otherwise process third party samples or specifications,
including fee for service activities, contract research or service bureau activities; (iii) use the Product and associated documentation for
human in-vitro diagnostic applications; (iv) remove or destroy any proprietary rights marks or legends on or in the Product or associated
documentation; (v) adapt, translate, modify, enhance, or create derivative works of the software component of the Products or associated
documentation; (vi) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of the software component
of the Product; (vii) assign;, distribute, sublicense, rent, lease, sell, post on the Internet, or otherwise transfer the Product or associated
documentation, in print or through any electronic or other medium; or (viii) make copies of the software component of the Product or
associated documentation other than for archival and backup purposes.
6. Acceptance. The Product is deemed accepted ten (10) days after the date of installation by IntelliCyt unless, within that time
period, Customer provides IntelliCyt documentation that the Product delivered does not conform to the specifications in the Invoice or the
written description provided by IntelliCyt with the Product (the “Documentation”). If the Product does not perform as set forth above for
reasons inherent in the Product (and not, for example, third party hardware, software, equipment, damage by Customer or improper system
configuration), IntelliCyt will promptly repair or replace the Product with a conforming Product. If the Product still does not materially conform
to its written description or specifications, Customer may accept the Product AS IS or return the Product and receive a refund of fees paid for
the Product.
7. Limited Warranties; Exclusion of Certain Warranties.
7 1 Limited Warranty IntelliCyt warrants that for one (1) year after the date of shipment, the Product will perform in substantial
conformance with the Documentation, provided that the Product has been used as specified by IntelliCyt. IntelliCyt will use
reasonable efforts to correct any material nonconformance within thirty (30) business days after receipt of written notice of such
nonconformance and Customer’s provision of any data, output, or other documentation or description of the nonconformance.
7 2 Voiding the Product Warranty This limited warranty applies only to the Product used in accordance with this Agreement
and the Documentation and does not apply if the Product (a) has been subject to accident or misuse; or (b) has been repaired,
reassembled, or modified by a party other than IntelliCyt; or (c) has not been maintained in accordance with the Documentation; or
(d) if the Product’s serial number has been removed or defaced; or (e) has been incorporated into a system without IntelliCyt’s review
and written approval.
7 3 Exclusive Remedies IntelliCyt does not warrant that the Product will meet Customer’s specific needs, industry
requirements, be error-free, or operate without interruption. The remedies in this Section 7 are the sole and exclusive remedies
provided to Customer by IntelliCyt relating to the Product.
7 4 Disclaimers
7.4.1 INTELLICYT MAKES NO WARRANTIES ON BEHALF OF ITS LICENSORS TO INTELLICYT’S CUSTOMER IN
CONNECTION WITH THE PRODUCT AND DISCLAIMS ALL STATUTORY, EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES AND NON-
INFRINGEMENT OF THIRD PARTY RIGHTS.
7.4.2
INTELLICYT AND ITS LICENSORS SHALL HAVE NO LIABILITY TO CUSTOMER FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, LOSS OF ANTICIPATED PROFITS OR BUSINESS, LOSS OF DATA
OR SAMPLES OR FOR INTERRUPTIONS IN BUSINESS WITH RESPECT TO ANY CLAIM OF ANY KIND RESULTING FROM THE
PRODUCT.
8. Product Intellectual Property. IntelliCyt or its licensors retain all right, title and interest in the Product and associated
documentation, including all intellectual property rights therein and any derivations thereof.
9. Limitations of Liability for Damages. Neither party shall be liable for indirect, incidental, consequential, special, punitive or
exemplary damages, or for lost profits or business interruption losses, in connection with the Product or this Agreement, regardless of whether
such party has been made aware of their possibility. Other than amounts due to IntelliCyt for purchase of the Product, the indemnification
obligations of Section 11, and the breach of the provisions of Sections 4 and 10, in no event shall either party be liable to the other, under any
theory of recovery, including contract, negligence, strict liability, warranty, misrepresentation, or products liability, in an amount in excess of ten
thousand dollars ($10,000). Any claims relating to this Agreement shall be brought within one (1) year after the occurrence of the event giving
rise to the cause of action.
10. Confidentiality. IntelliCyt and Customer may have access to information that the other considers to be confidential, private, or a
trade secret. This information may include, but is not limited to, data, technical know-how, technical specifications, results of testing, new
product designs, strategic plans, and competitive intelligence (“Information”). Each party shall use the other’s Information only to perform its