Terms and Conditions

SUMMARY

Avails Medical, Inc., a Delaware corporation (“Avails”) offers in vitro diagnostic products and services to address the global challenge of antibiotic resistance and healthcare associated infections. The Avails website provides information about Avails but does not provide medical advice. Please consult your physician for any such advice. We refer to our products and services available from time to time in any medium, including our hardware and software, as our “Services”. Our Services are provided by us – and when we say “us” or “we” that means Avails.

Information provided to Avails is not subject to the US Health Insurance Portability and Accountability Act of 1996 Privacy Rules.

These Terms and Conditions (these “Terms”) apply to the use of the Avails website, and to any offers, quotes, orders or other agreements related to the purchase, evaluation or use of our products and services. These Terms may be updated from time to time without notice.

By accessing the Avails website and/or by purchasing, evaluating or otherwise engaging with Avails for our Services, you are agreeing to be legally bound by these Terms. Please read the Terms carefully. Avails shall not be bound by, and specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of these Terms which a purchaser, evaluator or other user of our Services (a “User”) may include in a purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless Avails specifically agrees to such provision in a written instrument signed by Avails. Avails’ acceptance of any order or other contract by a User is expressly conditioned by the User’s agreement to these Terms.

Please be aware that Avails may add other features to our Services, in which case additional terms or product requirements may apply. Additional terms may become applicable with the relevant Services, and those additional terms shall become part of your agreement with us, along with these Terms, if you purchase or use those Services. Those additional terms may include sales agreements and supplements and addendums thereto, including clickthrough agreements. We may also supplement these Terms with other policies and guidelines which may be published or linked on our website, or may be part of separate sales agreements.

Please note that the “Disputes” section of these Terms contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree to resolve all disputes through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and that you waive your right to participate in class actions, class arbitrations, or any other sorts of representative actions.

The capitalized words used in these Terms are either defined here (generally by using quotes the first time we use the term) or in our Privacy Policy, which is accessible at https://availsmedical.com/privacy-policy/.

PURCHASE, SHIPPING AND OWNERSHIP

Avails shall generally provide to each User of our Services an agreement accepted by Avails in writing or electronic record. Avails shall make a reasonable effort to meet the quoted delivery dates, but shall not be liable for any failure to meet such dates. Unless otherwise agreed, Avails assumes all responsibility and expense for shipping and insurance for products sent to evaluator or purchaser location with such responsibility commencing when the product first leaves Avails enroute to the evaluator or purchaser location, and expiring upon such time as the products are returned to Avails at a location designated by Avails.

INSPECTION, ACCEPTANCE AND RETURNS

Each User that is an evaluator or purchaser of Services shall:

(a) Inspect all shipments within 24 hours after arrival;

(b) Notify Avails in writing within two days of any defects which are reasonably discoverable upon arrival;

(c) Notify Avails within 30 days as from the receipt of any products of any hidden defect;

(d) Provide a notice which includes: Reason for return; Product number, quantity and lot number; Purchase order number; Avails order number; and date of invoice;

(e) Upon written authorization from Avails, return the allegedly defective product; and

(f) Allow Avails a reasonable opportunity to inspect products to enable Avails to verify the alleged nonconformity.

An evaluator or purchaser’s failure to timely notify Avails in writing of any alleged nonconformity of products shall constitute an immediate and irrevocable acceptance of such products and an acknowledgment that such products conform to applicable specifications.

PAYMENTS

Avails shall quote a price for products, but may change its prices at any time without prior notice. Unless otherwise expressly stated, prices do not include sales, use, gross receipts, excise, valued-added, services, or any similar transaction or consumption taxes (“Taxes”). Each User acknowledges and agrees that it shall be responsible for the payment of any such Taxes to Avails, if applicable, unless it otherwise timely provides Avails with a valid exemption certificate or direct pay permit. In the event Avails is assessed Taxes, interest and/or penalty by any taxing authority, the applicable User shall reimburse Avails for any such Taxes, including any interest or penalty assessed thereon.

Avails shall issue an invoice to be paid no later than 30 days after the date thereof. Unless previously otherwise negotiated, invoices shall be paid regardless of disputes relating to other invoices, and Users waive the right to assert offsets or counterclaims with respect to such invoices. A User shall promptly notify Avails in writing of any disputed invoice. Unless otherwise agreed by Avails, any amounts not paid when due shall be subject to a late payment fee computed daily at a rate equal to 1.5% per month or the highest rate permissible under applicable law, whichever is lower. Purchaser agrees to pay Avails’ reasonable attorneys’ fees and other costs incurred in collection of any amounts not paid when due, whether or not suit is commenced.

If Avails deems a User’s financial condition or for any reason is insecure with respect to Purchaser’s performance of any obligation under these Terms, Avails may accelerate and demand immediate payment of any amounts owed, suspend performance or cancel these Terms as applicable to such User’s use of or access to the Services.

Any discounts provided by Avails are intended to comply with the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b). Each User acknowledges that it is aware of its legal obligations for cost reporting, including 42 C.F.R. § 1001.952(g) and (h), and shall request from Avails any information beyond the invoice of fees needed to fulfill such User’s cost reporting obligations.

WARRANTIES, LIMITATIONS AND DISCLAIMERS OF LIABILITY, REMEDIES

1. Avails makes this website available to you on an “as is” basis. It is your responsibility to ensure that the website is suitable for your intended purposes. We accept no liability as to the suitability or fitness of the website in meeting your needs and we exclude all express or implied warranties, representations, conditions or terms. Avails makes no representations or warranties as to this website, including the accuracy of information. Your use of this site is at your sole risk. Avails is not liable for any direct, incidental, consequential, indirect, punitive, or other damages arising out of your access, use, or inability to use this website, or any errors or omissions in the content of this website. Any links on the avails website to other websites are not controlled by avails and avails has not ensured the accuracy of information on these sites. Avails does not assume responsibility for information provided on this or other sites.
2. Avails warrants that the Services shall be free from defects in materials and workmanship for 90 days from the date of purchase. Avails further warrants to the original purchaser that the Services shall be free from material defects in materials and workmanship for 12 months from the date of purchase. During the warranty period, Avails shall replace a defective product at no charge. This warranty is void if the product has been subjected to misuse, abuse, unauthorized alterations, or moved beyond minor benchtop organization. The user is responsible for all routine or preventative maintenance as described in the applicable instrument manual. Repairs associated with improper maintenance are not covered under warranty and shall be at the User’s sole expense.
3. Other than as expressly set out in these terms or any applicable additional terms, neither Avails nor its suppliers or distributors make any specific promises about the Services. For example, we don’t make any commitments about the content within the Services, the specific functions of the Services, or their reliability, availability, or ability to meet your needs. We provide the Services “as is”.
4. Some jurisdictions provide for certain warranties, like the implied warranty of merchantability, fitness for a particular purpose and non-infringement. To the maximum extent permitted by law, we disclaim and exclude all such warranties.
5. When permitted by law, Avails and our suppliers and distributors shall not be responsible for lost profits, revenues, or data, financial losses or indirect, special, consequential, exemplary, or punitive damages.
6. To the maximum extent permitted by law, Avails’ cumulative liability to you or any party related to you for any losses or damages arising out of or relating to this agreement or use of the Services shall not exceed the amount you actually paid for the applicable portion of the Services at issue within the 12-month period immediately preceding the date of your claim or $100, whichever is greater. This limitation applies to all causes of action or claims in the aggregate, including, without limitation, breach of contract, breach of warranty, indemnity, negligence, strict liability, misrepresentation, and other torts. In no event shall Avails be liable to you or any third party for any indirect, incidental, consequential, special, exemplary, or punitive damages, or lost profits, regardless of the cause of action on which they are based, even if Avails has been advised of the possibility of such damages occurring. A User’s exclusive remedy for any defective product for which Avails is responsible is limited to the repair or replacement of the defective product. If Avails does not repair or replace the defective product for which Avails is responsible, Avails shall refund applicable fees therefor. This limitation does not apply to any claim covered by the indemnity provisions.
7. In all cases, Avails, and its suppliers and distributors shall not be liable for any loss or damage that is not reasonably foreseeable.

INDEMNIFICATION

You agree to indemnify, defend, hold harmless and pay reasonable fees to Avails, its affiliates and their respective officers, directors, employees, agents and representatives from and against any and all loss, costs, and expenses from third party claims or suits associated with your use of this website, your negligent act or omission in connection with the purchase, storage, use, sale, lease, shipment, promotion, endorsement, or distribution of the Services or any Avails product, your breach of any representation, warranty or covenant contained herein, or your failure to comply with any or all laws or other regulatory requirements.

CONFIDENTIALITY

Avails and each evaluator or purchaser of an Avails products anticipate that it may be necessary for any of such parties (a “Disclosing Party”) to disclose to the other party (the “Receiving Party”) certain non-public information relating to the Disclosing Party’s business and operations, including, without limitation, inventions, disclosures, processes, systems, methods, formulae, devices, patents, patent applications, trademarks, intellectual properties, instruments, materials, products, patterns, compilations, programs, techniques, sequences, designs, research or development activities and plans, specifications, computer programs, source codes, mask works, costs of production, prices or other financial data, volume of sales, promotional methods, marketing plans, lists of names or classes of customers or personnel, lists of suppliers, business plans, business opportunities, or financial statements that: (i) derives independent economic value, actual or potential, for not being generally known to the public or to other persons, (ii) is the subject of efforts to maintain its secrecy, or (iii) would otherwise be understood by a reasonable business person to be of a confidential nature (the “Confidential Information”). Confidential Information shall be received and maintained by the Receiving Party in strict confidence and shall not be used for any purpose other than as expressly permitted under this Agreement. The restrictions set forth in this Section shall not apply with respect to any information which the Receiving Party can document: (a) became publicly known through lawful means; (b) was rightfully in the Receiving Party’s possession prior to disclosure by the Disclosing Party; (c) is disclosed to the Receiving Party without confidentiality or proprietary restriction by a third party who rightfully possesses the information (without confidentiality or proprietary restriction); or (d) is or has been independently developed by the Receiving Party without use of or access to the relevant Confidential Information of the Disclosing Party. Except as expressly authorized by these Terms or a separate agreement, the Receiving Party shall not, nor shall it allow others to, use, display, copy, disclose, transmit, reverse engineer, disassemble, decompile, translate, modify, or create derivative works from all or any part of Confidential Information. Notwithstanding anything contained herein to the contrary, the Receiving Party may disclose Confidential Information pursuant to an order of a court of competent jurisdiction or as otherwise required by applicable law, so long as the Receiving Party (1) promptly notifies the Disclosing Party after the Receiving Party becomes aware that such disclosure may be required, (2) uses reasonable efforts to limit disclosure, (3) uses reasonable efforts to obtain confidential treatment or a protective order of the Confidential Information required to be disclosed, (4) provides the Disclosing Party with advance notice of such required disclosure (if reasonably possible under the circumstances) in order to afford the Disclosing Party an opportunity to take legal action to prevent or limit the scope of such disclosure, and (5) otherwise reasonably cooperates with the Disclosing Party in connection with the foregoing.

USE OF DATA 

To the extent either Party creates, receives, maintains, transmits or otherwise has access to any protected health information (“PHI”) in the course of performing under this Agreement, such Party shall only use and disclose such PHI as permitted by the administrative simplification section of the Health Insurance Portability and Accountability Act of 1996, Pub. Law 104-191 (August 21, 1996), its implementing regulations, and the Health Information Technology for Economic and Clinical Health Act and its implementing regulations.

ADVERSE EVENT REPORTING

Each User shall adhere to all requirements of applicable law and regulations that relate to the reporting and investigation of any adverse event related to any Avails product. Without limitation, each User shall promptly, but no later than three business days from first contact, inform Avails of: (a) any complaint, including any quality and safety issues (including but not limited to adverse events, off-label use, misuse, abuse and medication errors); (b) lack of efficacy or performance related complaints; (c) after sales inquiry concerning the Products; ( d) any correspondence with the FDA or any other applicable regulatory authority regarding safety issues; and (e) and any other issue which could be relevant to Avails’ medical device vigilance obligations in relation to the Products.

FORWARD LOOKING STATEMENTS

This website and other marketing and similar materials provided by Avails may contain forward-looking statements, the accuracies of which are subject to risks and uncertainties. Actual events or results may differ materially from these forward-looking statements.

INTELLECTUAL PROPERTY

The use or misuse of Avails’ copyrighted material, trademarks, or other materials is prohibited and may be in violation of laws, statutes, and/or regulations. The content of this website, including any images or text, is copyrighted and may not be downloaded, modified, distributed, reused, reposted, or otherwise used without the express written permission of Avails.
You may not frame, link or deep-link this website to any other website without our prior written consent. Should you wish to frame or set up a link or deep link to our website please contact us using the contact information on this Site.
If you believe that your intellectual property work has been infringed, you may notify Avails by providing the following in writing:

1. Identification of the item that you claim has been infringed;
2. Identification of the material that is claimed to be infringing and information reasonably sufficient to permit Avails to locate the material;
3. Your name, address, telephone number, and email address;
4. A statement by you that you have a good faith belief that the disputed use is infringing and not authorized;
5. A statement, made under penalty of perjury, that the above information in your notice is accurate and that you are the IP owner or are authorized to act on the owner’s behalf; and
6. The electronic or physical signature of the owner or a person authorized to act on the owner’s behalf.

DISPUTES

We hope that we can resolve your issues quickly and fairly. If we can’t, then these rules shall govern any legal dispute involving our Services.
These Terms are governed by the laws of the State of California, without regard to its conflict of laws rules, and the laws of the United States of America. These laws shall apply no matter where in the world you live, but if you live outside of the United States, you may be entitled to the protection of the mandatory consumer protection provisions of your local consumer protection law.

You and Avails agree that any dispute or claim arising from or relating to the Terms shall be finally settled by final and binding arbitration, using the English language, administered by the American Arbitration Association (the “AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms you can find the AAA Rules here), unless otherwise required by law. Arbitration, including threshold questions of arbitrability of the dispute, shall be handled by a sole arbitrator in accordance with those rules. Judgment on the arbitration award may be entered in any court that has jurisdiction.

Any arbitration or mediation under the Terms shall take place on an individual basis. You understand that by agreeing to the Terms, you and Avails are each waiving the right to trial by jury or to participate in a class action lawsuit. Class arbitrations shall only be available if requested by either party under its Class Action Arbitration Rules and approved by the arbitration entity. Notwithstanding the foregoing, each party shall have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator or mediator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court, and your claim remains on an individual, non-representative, and non-class basis.

Payment for any and all reasonable AAA filing, administrative, and arbitrator fees shall be in accordance with the Consumer Arbitration Rules.
Any legal action against Avails related to our Services must be filed and take place in San Mateo County or Santa Clara County. For all actions under the AAA Rules, the proceedings may be filed where your residence is, or in Santa Clara County, California, and any in-person hearings shall be conducted at a location which is reasonably convenient to both parties taking into account their ability to travel and other pertinent circumstances. For any actions not subject to arbitration or mediation, you and Avails agree to submit to the personal jurisdiction of a state or federal court located in or within 50 miles of Santa Clara County, California.

If you are a government agent or entity in the United States using the Services in your official capacity, and you are legally unable to agree to the clauses in this section, then those clauses do not apply to you. In that case, these Terms and any action related to these Terms shall be governed by the laws of the United States (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of California
If we make any changes to this section after the date you last accepted the Terms, those changes shall not apply to any claims filed in a legal proceeding against Avails prior to the date the changes became effective. Avails shall notify you of substantive changes to this section at least 30 days prior to the date the change shall become effective. If you do not agree to the modified terms, you may send Avails a written notification (including email) or close your Account within those 30 days. By rejecting a modified term or permanently closing your Account, you agree to arbitrate any disputes between you and Avails in accordance with the provisions of this section as of the date you last accepted the Terms, including any changes made prior to your rejection.

MISCELLANEOUS PROVISIONS

Costs and Expenses. Except as expressly provided for elsewhere, each Party shall be responsible for all costs and expenses incurred by such Party in performing its obligations or exercising its rights under these Terms.
Partial Invalidity; Severability. If any provision of the Terms is in conflict with any statute or rule of law of any state or district in which it may be sought to be enforced, then such provision shall be deemed null and void to the extent that it may conflict therewith, but without invalidating the remaining provisions hereof.

The Terms constitute the entire Terms regarding the subject matters set forth herein and supersede any and all prior and contemporaneous terms, agreements, representations, and understandings, whether written or oral, regarding such matters.

Assignment. Neither Party may assign its rights or delegate its obligations without the other Party’s prior written consent, except pursuant to a transfer of all or substantially all of its business and assets, whether by merger, sale of assets, sale of stock or otherwise.
Agency. These Terms do not intend that any agency or partnership relationship be created

Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, floods, storms, explosions, earthquakes, pandemics, telecommunications outages, acts of God, war, terrorism, governmental action, or any other cause which is beyond the reasonable control of such party.

Notices. Any notice required or permitted hereunder shall be in writing and shall be deemed effectively given upon personal delivery, three business days after deposit in the United States mail, by certified mail, postage prepaid, return receipt requested, or the business day after delivery to a recognized overnight courier, to an officer of the party to which such notice is being given at the address set forth below the name of such party on the signature page hereof.

No Third Party Beneficiaries. All rights and obligations of the Parties hereunder are personal to them. These Terms are not intended to benefit, nor shall they be deemed to give rise to, any rights in any third party.

Waiver. The failure of either Party to require performance by the other Party of any provision shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either Party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms shall remain in full force and effect.

Injunctive Relief. In the event of breach of these Terms, money or damages may not be an adequate remedy, and therefore, in addition to any other legal or equitable remedies, either Party shall be entitled to seek an injunction or other equitable remedy against such breach, without the necessity of a bond or other security, in any court having jurisdiction.

Arbitration. Except as otherwise agreed, any controversy or claim arising out of, or relating to, these Terms or the breach of these Terms shall be settled by arbitration by, and in accordance with the applicable Commercial Arbitration Rules of the American Arbitration Association and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The arbitrator(s) shall have the right to assess, against a party or among the parties, as the arbitrator(s) deem reasonable, (a) administrative fees of the American Arbitration Association, (b) compensation, if any, to the arbitrator(s) and (c) attorneys’ fees incurred by a party.

Governing Law; Consent to Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of the State of California, excluding those laws that direct the application of the laws of another jurisdiction. Except in the event that any legal action becomes necessary to enforce or interpret these terms, such action shall be brought in the U.S. District Court of the Northern District of California, San Mateo or Santa Clara County, and such parties hereby submit to the jurisdiction and venue of said court.

Counterpart and Electronic Signatures. These Terms may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. These Terms may be executed by electronic signature.

Construction. The section headings in these Terms are for reference purposes only and shall not affect the meaning or interpretation of these Terms. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the construction or interpretation of these Terms.