The following provisions set forth the Terms and Conditions on which Avellino Lab USA, Inc., directly or
indirectly through its distributors/agents, hereinafter referred to as Avellino, sells its AvaGen™, The
Genetic Eye Test, and related services. All purchases by Customer, owner, or its agent (“Customer”) are
expressly limited and conditioned upon acceptance of the following Terms and Conditions. A placement of an
order indicates Customer’s full acceptance and agreement of the terms and conditions stated herein to the
fullest extent of applicable laws. Notwithstanding the foregoing, if Avellino and Customer have executed a
formal written contract that is in full force and effect, the Terms and Conditions of that contract will
apply and govern, to the exclusion of any inconsistent Terms and Conditions set forth herein.
“Authorized Representative” means the Global Head of Sales and Marketing and the Chief
Financial Officer of Avellino.
“Customer”means the entity to which Avellino is providing Products or Services under the Order
“Order Form” means the purchase order signed by Customer and accepted by Avellino in writing,
of Products or Services, together with these Terms and Conditions.
“Products” means collection packs used
to collect samples from Patients for performance of the AvaGen™ Genetic Eye Test.
“Services” means the
screening, testing, reporting of results, genetic counseling or other laboratory related services
provides in connection with the AvaGen™ Genetic Eye Test.
“Terms and Conditions” means these “Terms and Conditions for the Sale of Products and Services”,
together with any modifications or additional provisions specifically stated in Avellino’s final Order
Form or specifically agreed upon by Avellino in writing.
Purchase of the Products and Services sold by Avellino shall be subject to and
expressly limited by the Terms and Conditions stated herein. No changes to, waiver of, or addition to any
of these Terms and Conditions shall be effective unless agreed to in writing and signed by an Authorized
Representative of Avellino. Notwithstanding the foregoing, Avellino reserves the right at any time to
amend these Terms and Conditions, and Customer shall be deemed to accept such amended Terms and Conditions
by ordering Products and Services after the date of such amendment.
All pricing quotes for Products and Services are firm for 30 days from the date quoted
and must be documented in writing in the Order Form and confirmed by Avellino to be valid. Unless
otherwise stated in writing by an Authorized Representative of Avellino, all prices for Products and
Services: (a) are quoted and payable in U.S. Dollars, (b) are subject to change without prior notice at
Avellino’s discretion following the 30 day quote, and (c) do not include applicable shipping and handling
costs, which are the responsibility of Customer and, if paid by Avellino for Customer’s account, shall be
invoiced to Customer either with the Products or separately. In the event Customer changes any order (if
and when permitted by Avellino), Avellino may adjust prices accordingly.
Avellino will use all reasonable efforts in good faith to deliver accepted orders for
Products and Services in accordance with its delivery schedule provided by the order acceptance,
acknowledgment, confirmation, or similar document, and if no such schedule is stated, promptly. However,
Avellino shall not be liable for nonperformance or delays caused by a shortage of raw materials,
manufacturing problems, delivery or labor problems, acts of regulatory agencies or judicial bodies,
discontinuation of a product line, acts of God or third parties, infringement claims, or other causes
beyond its reasonable control. Customer agrees that in such events Avellino may allocate Products or
Services among all purchasers as it deems reasonable, without liability. Avellino reserves the right
time to time to substitute a Product with a product that has the same function as such Product.
All Products will be shipped by Avellino. All packing, transportation expenses, handling charges,
and insurance (if any) shall be for the account of Customer, and Avellino shall charge Customer for
such charges, costs, and expenses as a separate line item on Customer’s invoice. International
shall, at their expense, perform all functions necessary to clear the Product through all customs
similar controls into the country. Avellino will select the mode of shipment and the carrier but
be deemed thereby to assume any liability in connection with the shipment nor shall the carrier be
construed as an agent of Avellino.
Title to the Products (subject to Avellino’s right of stoppage in transit) and risk of loss, damage
delay will pass to Customer upon Avellino’s tender of delivery of the Products. Avellino shall not
obligated to procure additional insurance.
When expedited delivery, specialized service, or alternate transportation modes are requested, or
requests are inconsistent with efficient distribution practices, an additional charge to cover the
expense will be added to the invoice. Such additional charges will be based on current common
rates or hourly rates.
Terms of payment are strictly net thirty (30) days from date of invoice for pre- approved
Some credit cards are accepted for payment (a transaction fee may apply). Avellino reserves the
to require pre-payment or COD for purchases of Products and Services. Any international Customer
shall be prepaid to Avellino by electronic funds transfer in U.S. Dollars. In Avellino’s sole
discretion, credit terms may be extended to Customer. Customer’s obligation to pay outstanding
invoices and all other amounts is absolute and unconditional and is not subject to any abatement,
reduction, set-off, defense, counterclaim, interruption, deferment, or recoupment for any reason
whatsoever. All overdue payments shall bear interest at a rate of one and one-half percent (1.5%)
month or the maximum rate permitted by applicable law, whichever is lower, until paid.
Avellino Lab USA, Inc.
Any disputed amounts should be reported immediately and remitted with the undisputed amount by the
payment due date. If Avellino agrees with the billing dispute, Avellino will credit Customer the
amount of the agreed-upon billing dispute. All billing disputes must be made within six (6) months
the applicable invoice date or will be deemed to be waived.
Customer shall be liable for and shall reimburse Avellino for all costs and expenses it may incur
connection with collection of any amounts owed to Avellino or enforcement of its rights, including
without limitation, reasonable attorneys’ fees and expenses, court costs, and costs of collection
agencies. Avellino reserves the right in its sole discretion to cancel any unshipped orders and/or
require all future shipments to be paid in full in advance of shipment until all overdue balances
Customer will follow and comply with all applicable governmental laws,
regulations, and orders in the use or import of any Products. Customer will not export or reexport the
Products except in full compliance with all applicable laws and regulations. Customer shall be
responsible for obtaining and maintaining all applicable permits, licenses, or authorizations
necessary for the import or use of the Products in Customer’s country at its sole expense (e.g., CITES
import permits). Customer acknowledges it is solely responsible for complying with the Export
Administration Act provisions concerning anti-boycott compliance, and that Customer is prohibited from
taking or knowingly agreeing to take any of the actions contained in such Act, in either United States
interstate or foreign commerce, with the intent to comply with, further, or support any boycott
fostered or imposed by a foreign country against a country friendly to the United States. Customer
certifies that it is not on the U.S. Commerce Department’s Denied Party or Entity List or the
Unverified Parties List and agrees that it will not sell or distribute any Products to any party on
such lists. Customer agrees and warrants that in performing its obligations under these Terms and
Conditions, it will not take any action rendering Avellino liable for violation of the United States
Foreign Corrupt Practices Act, which prohibits offering, giving, or promising to offer or give,
directly or indirectly, money or anything of value to any official of a government, political party,
or instrumentality of these organizations, in order to assist it or Avellino in obtaining or retaining
business. Customer will indemnify and hold Avellino harmless from all fees, fines, or other damages
imposed on or suffered by Avellino due to Customer’s failure to comply with this section. For the
avoidance of doubt, nothing in this Section 10 is intended to limit the prohibition of resale set
forth in Section 12 below. Customer shall comply with applicable state and federal laws in connection
with its purchase of Products and Services, including, without limitation, the federal False Claims
Act (31 U.S.C. §§ 3729 et seq.), the federal anti-kickback statute (42 U.S.C. § 1320a-7b(b)) (the
“AKS”), the federal Physician Self-Referral Law (42 U.S.C. § 1395, the “Stark Law”) , the Health
Insurance Portability and Accountability Act of 1996 and the Health Information Technology for
Economic and Clinical Health Act (collectively, “HIPAA”), and any regulations implementing such laws,
as well as all comparable state and local laws and regulations. Any discounts provided in connection
with the sale of Products or Services are intended to comply with the AKS. Customer shall fully and
accurately report in submissions to federal healthcare programs all discounts provided and, upon
request of the Secretary of the U.S. Department of Health and Human Services or a state agency, shall
make available information provided to Customer by Avellino concerning the discounts. Customer
acknowledges that compliance with the AKS exception or regulatory safe harbor for discounts, including
the reporting obligations, is a condition precedent for the sale of Products and that Avellino would
not have agreed to sell Products and Services hereunder had Customer not agreed to comply with such
obligations. Customer acknowledges and agrees that Avellino is not a HIPAA Business Associate to
Customer. Customer acknowledges and agrees that Avellino has the authority, in its sole and absolute
discretion, to recall any Product to comply with applicable laws, and Customer agrees to fully
cooperate with Avellino in the case of any such recall.
All Products offered by Avellino are intended for Customer’s own use by qualified
professionals. Customer acknowledges that it will comply with any instructions or directions contained
in Avellino’s labeling and literature concerning the Products and will forward such information to its
employees, agents, and contractors. Customer shall ensure that all employees, agents, and contractors
use all due care with Products to prevent potential hazards and are appropriately trained in the use
of the Products to collect samples for the Services. All clinical and medical treatment and diagnostic
decisions are the responsibility of Customer and its professional healthcare providers.
Customer shall purchase the Products and Services for its own use only and shall
not resell the Products or Services to any other party. Customer represents it has evaluated the
Products and Services and that they are acceptable and clinically suitable for its intended purposes.
Avellino has the right to make changes in the composition of the Products which,
in Avellino’s opinion, do not affect the general characteristics or properties of the Products or are
within applicable governmental or industry standards.
These Terms & Conditions of Sale is governed by the laws of the State of
California, without regard to any choice of law provisions. Any controversy or claim between the
parties or arising out of these Terms & Conditions of Sale shall be determined by one disinterested
arbitrator in binding arbitration pursuant to the Commercial Arbitration Rules and the Supplementary
Procedures for Online Arbitration of the American Arbitration Association (the "AAA"). If the parties
fail to appoint an arbitrator within forty-five (45) days of the institution of the arbitration, the
AAA shall select the arbitrator promptly thereafter. Any requests for accelerated, emergency, or
preliminary relief shall be submitted pursuant to the AAA's Optional Rules for Emergency Measures of
Protection. If any such requests are made before an arbitration panel is empaneled, then the AAA shall
appoint one disinterested arbitrator as an arbitration panel to immediately hear and decide such
request. The arbitration panel shall have the right to grant interim awards. Testimony shall be
permitted by telephone, video conference and other forms of real-time telecommunications. If the
arbitrator requires in-person hearings, the hearings shall be held in Santa Clara, California. Any
controversy, claim, or dispute will be resolved with a written decision stating legal reasoning issued
by the arbitrator(s) at either party’s request, and with the arbitration costs and reasonable
documented attorneys’ fees/costs of both parties to be borne by the party that loses (does not
prevail). The arbitral award will be final and binding and may be entered and enforced in any court of
competent jurisdiction. Either party may obtain injunctive
relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any
court of competent jurisdiction.
WAIVE CERTAIN RIGHTS TO LITIGATE DISPUTES IN COURT, TO RECEIVE A JURY TRIAL OR TO PARTICIPATE AS A
PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE
CAPACITY. TO THE FULLEST EXTENT PERMITTED UNDER ALL APPLICABLE LAWS, YOU AND AVELLINO BOTH AGREE THAT
ANY ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT A CONSOLIDATED, CLASS-WIDE, OR
REPRESENTATIVE BASIS, AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO PROCEED WITH AN ARBITRATION ON A
CLASS OR REPRESENTATIVE BASIS. THE ARBITRATOR MAY AWARD INJUNCTIVE RELIEF ONLY IN FAVOR OF THE
INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT
DEEMED INAPPLICABLE OR INVALID, OR TO THE EXTENT THE ARBITRATION CLAUSE ALLOWS FOR LITIGATION OF
DISPUTES IN COURT, YOU AND AVELLINO LABS BOTH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT
TO PURSUE OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR
CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.
Technical support is provided for all Products and Services purchased directly
from Avellino. Technical Support can be contacted by calling (650) 396-3741, Monday through Friday
8:00 am to 8:00 pm Pacific Time and Saturday-Sunday 8:00 am to 4:30 pm Pacific Time (except holidays)
or via e-mail at firstname.lastname@example.org.