Welcome to HistoWiz, the website and online service of HistoWiz, Inc. (“HistoWiz,” “we,” or “us”). This document set out the terms and conditions on which you (“you” or the “Client”) may use our online services, histopathology services, website, and software provided on or in connection with such services (collectively, the “Service”). By accessing or ordering any Services from HistoWiz, Client agrees to be bound by these terms and conditions (the “Terms”). If you do not accept these terms and conditions, HistoWiz shall not provide the Service to Client and Client shall not be permitted to request or order services from HistoWiz.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
USE OF OUR SERVICE
This is a contract between you and HistoWiz. You must read and agree to these terms before using or requesting the Services. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with HistoWiz, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any users previously removed from the Service by HistoWiz.
If you request or access the Services on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf. We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to our customers generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.
“Client Materials” shall mean those specimens and other materials provided by the Client to HistoWiz in connection with the HistoWiz Services; “HistoWiz Service Order” shall mean HistoWiz’s online order form and any Client request for HistoWiz Services by HistoWiz that may be made from time to time. CHANGES
HistoWiz reserves the right to make unilateral modifications to these Terms and will provide notice of these changes as described below. Client may not make any changes to HistoWiz Service Orders once mutually accepted by both HistoWiz or once the samples have been submitted. Changes to a Service Order may only be made if in writing and signed by and authorized by Client and HistoWiz. If Client wishes to make any changes, appropriate written requests for change orders must be discussed with HistoWiz and any pricing adjustments must be agreed upon in writing.
HistoWiz acknowledges that in the course of providing the Services hereunder, HistoWiz, or its employees or consultants, may be supplied with or come into possession of your specimens and other Client Materials that you mark or designate in writing to us as confidential (“Client Confidential Information”). HistoWiz agrees that any Client Confidential Information received by HistoWiz will not be disclosed to any third party except to HistoWiz’s third party vendors, consultants, and other service providers that perform services on our behalf and who are bound by confidentiality obligations, without your consent.
Client shall be responsible for obtaining all rights and/or permissions from third parties, if any, which shall be necessary for the development and use of any Client Material by HistoWiz hereunder. You represent and warrant that you have the express or explicit written consent from any person the Client Material relates or concerns (e.g., any individual whose tissue the slide content relates to), including all legally required permissions, to share the Client Material with us for performance of the Services; you have all other legally required licenses and permissions to share Client Materials with us, including our use in performing the Services; your provision of the Client Materials complies with all applicable foreign, federal, state and local laws, regulations, rules, codes of conduct, contractual requirements and any other applicable requirements; you will ensure the Client Materials are suitable for use by HistoWiz in order to perform the Services; you will ensure any and all Client Materials comply and conform to any specifications in the Service Order; any and all information it provides on any Service Order is accurate and complete and you will keep this information up to date; and any use by HistoWiz of the Client Materials or any compliance by HistoWiz with the Client's instructions, whether express or implied, will not result in the infringement or alleged infringement of any intellectual property rights, including but not limited the registered copyright, trademark, United States Patent, privacy right, or other intellectual property right held by any third party. HistoWiz will provide to Client HistoWiz Services according to the fees, rates, and/or prices set forth in Histowiz Service Orders, unless expressly stated to the contrary in any applicable HistoWiz Services Order. Changes to the scope of the HistoWiz Services Order shall be made only in a writing executed by authorized representatives of both parties. The foregoing notwithstanding, if HistoWiz, at the express written request of Client, performs work that is not covered by a HistoWiz Services Order or that exceeds the scope of HistoWiz Services defined in the applicable HistoWiz Services Order, Client shall compensate HistoWiz.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HISTOWIZ OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, HISTOWIZ, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE. HISTOWIZ DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND HISTOWIZ WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HISTOWIZ, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL HISTOWIZ BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HISTOWIZ ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) CONTENT PROVIDED BY A THIRD PARTY OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL HISTOWIZ, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO HISTOWIZ HEREUNDER OR $100.00, WHICHEVER IS GREATER. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF HISTOWIZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. The Service is controlled and operated from facilities in the United States. HistoWiz makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
All finished products and Client Materials requested to be returned to the Client shall be shipped to F.O.B. shipping point. Risk of loss shall transfer to the Client upon tender of goods to Client, Client's representative, or common carrier. The cost of any special packing or special handling shall be added to the amount of the order. If Client causes or requests a shipment delay, or if HistoWiz ships or delivers the products erroneously as a result of inaccurate, incomplete or misleading information supplied by Client or its agents or employees, storage and all other additional costs and risks shall be borne solely by Client. Claims for products damaged or lost in transit should be made by Client to the carrier, as HistoWiz’s responsibility ceases upon tender of goods to Client, Client's representative or common carrier.
PRICE AND PAYMENT
Client agrees to pay for the Services and/or products according to the prices outlined in each Service Order in effect at the time the Services are rendered. Prices do not include slide transport/storage boxes, packaging, and postage, costs of which can only be determined at the time of invoicing and will be added to final invoicing. HistoWiz’s standard payment terms are DUE UPON RECEIPT of HistoWiz’s invoice, which is issued upon completion and shipment of order. Depending on the size and scope of the project, an initial pre-payment, progress payments, or other non-standard payment terms may be required and details will be included in HistoWiz’s Work Estimate or Project Quote. In the event Client fails to make any payment to HistoWiz when due, Client's entire account(s) with HistoWiz shall become immediately due and payable without notice or demand. All past due amounts are subject to service charges at the rate of 1.5% per month. Client shall have no right to order any change or modification to any product or Service previously ordered by Client or its representatives or cancel any order without HistoWiz’s written consent and payment to HistoWiz of all charges, expenses, commissions and reasonable profits owed to or incurred by HistoWiz. Specially fabricated or ordered items and supplies may not be canceled or returned, and no refund will be made.
SPECIMEN SUBMISSION REQUIREMENTS AND DISCLAIMERS
In order for HistoWiz to provide high-quality and efficient service to Client, HistoWiz has developed the following requirements and disclaimers to help ensure that the Client’s specimens arrive in viable condition. HistoWiz will not be held responsible for: Any specimen that is not submitted using HistoWiz’s Service Order, or any mistake that is made on the such Service Order by Client. Any illegibly written ID numbers on specimen manifests, containers or cassette. The quality of slides that are sectioned and/or stained by HistoWiz from poorly processed tissue submitted to us as paraffin blocks. Labeling that washes off during processing of cassettes sent to us labeled with improper ink Any unpredicted end result. Further, if any “untried” tissue, material or antibody is submitted to HistoWiz for “R&D” (Research and Development) workup, the Client is responsible for paying us for our time and efforts, even if the results are not in the Client's favor. Any poorly processed specimens which are sent to us in cassettes. The Client is responsible for the proper trimming of their tissue samples. Poor results from any special stain and IHC runs without HistoWiz's control slide. Damages caused by missing instructions, client is responsible for entering special instructions for every online order. In the event that the Client sends HistoWiz poorly prepared or poorly processed tissue samples (including, but not limited to, glass slides and specimen), and the aforementioned tissue sample damages HistoWiz equipment, the Client will be responsible for all charges by HistoWiz for repairing and/or replacing the equipment.
Each Party shall own all right, title, and interest in and to any inventions made solely by such Party’s employees, agents, and independent contractors in the course of conducting its activities under this Agreement during the Term, together with all Intellectual Property Rights therein, including any rights to applications or other protections for any of the foregoing. HistoWiz acknowledges and agrees that all Deliverables, Materials and Client Confidential Information will be Client’s property. Any copyrightable work created in connection with the performance of the Services and contained in the Deliverables will be considered work made for hire, whether published or unpublished, and all rights therein will be the property of Client as employer, author and owner of copyright in such work. HistoWiz shall have the right to use Deliverables for its internal research purposes. Notwithstanding the foregoing, Client agrees that HistoWiz possesses or may in the future possess analytical methods, computer technical expertise and software, which have been independently developed by HistoWiz and which will remain the sole and exclusive property of HistoWiz. Improvements or enhancements made to HistoWiz’s processes or methods which are independently developed by HistoWiz and are incidental to the provision of Services hereunder will remain the sole property of HistoWiz.
These Terms constitutes the entire, complete, and exclusive agreement between the parties with respect to the subject matter hereof and contains all the agreements and conditions of sale. No terms and conditions other than the terms and conditions contained herein shall be binding upon HistoWiz, and the terms and conditions contained herein may not be added to, modified, superseded or otherwise altered except by a written modification executed by both the Client and HistoWiz and signed by the President of HistoWiz. All transactions shall be governed solely by the terms and conditions contained herein. Client will be deemed to have assented to all terms and conditions contained herein if any part of the goods and/or services described herein are shipped or an invoice is presented in connection with the said goods and/or services.
Client shall defend, indemnify and hold harmless HistoWiz and its officers, directors, and employees, jointly and severally, from and against any and all claims, suits, actions, proceedings, liabilities, losses, damages, or expenses, including any legal and expert fees and expenses and all costs of investigation, which arise out of or relate to (i) Client's breach of any term or provision of this Agreement; (ii) the Client Materials in any manner; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) any content you submit including, without limitation, any misleading, false, or inaccurate information; or (vi) your willful misconduct. Client shall reimburse HistoWiz for all expenses (including counsel fees and expenses) as incurred by HistoWiz in connection with any such actions or claims.
HistoWiz’s failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of HistoWiz’s rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by HistoWiz’s President.
Client shall not be entitled to set-off any amounts due Client against any amount due HistoWiz in connection with this transaction.
If any provision of this agreement, or any portion thereof, is held to be invalid or unenforceable by any court of competent jurisdiction, such invalid or unenforceable provision or portion thereof shall not affect the remainder of this agreement. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by HistoWiz without restriction. Any attempted transfer or assignment in violation hereof shall be null and void
GOVERNING LAW AND ARBITRATION
Governing Law. You agree that: (i) the Service shall be deemed solely based in New York; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than New York. This Agreement shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Kings County, New York for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Kings County, New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM COMPANY. For any dispute with Company, you agree to first contact us at [insert email] and attempt to resolve the dispute with us informally. In the unlikely event that Company has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Kings County, New York, unless you and Company agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
Class Action/Jury Trial Waiver.WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
These Terms were last modified on February 29, 2016.