Terms and Conditions

Terms and Conditions

These are the terms and conditions (the “Terms and Conditions”) associated with the use of products (“Products”) sold by LIV Process, Inc., a Delaware corporation with a principal business address of 40 East Montgomery Avenue, #416, Ardmore, PA 19003 (“LIV Process”) by that certain person or entity (“Customer”) that has purchased Products from LIV Process pursuant to an “Order Form”.  Customer and LIV Process are sometimes referred to in the Terms and Conditions as a “Party” and collectively as the “Parties”.  These Terms and Conditions and the Order Form are sometimes collectively referred to as the or this “Agreement”.

Background

The Product has been manufactured for the express purpose of the identification and illumination of surfaces that are contaminated with Clostridium difficile spores. This identification and illumination enables surfaces to be cleaned and disinfected.  It is critical that the Product be used expressly as set forth in the product guidelines delivered with the sale of the Product.

  1. Supply. LIV Process will package, ship and sell the Products to Customer in accordance with the terms set forth in validly executed and accepted Order Forms.  All shipments to Customer will be “F.O.B. Shipping Point – Freight Collect” unless otherwise indicated. Unless Customer notifies LIV Process of any non-conformity of the Products with this Agreement within ten (10) days from actual discovery of any such non-conformity thereof, the Products shall be deemed accepted by Customer.
  2. Express Warranties. LIV Process represents and warrants to Customer that the Products shall: (i) be free from defects in design, workmanship, materials, and hazards to life, person, or property; (ii) be supported by proper evidence and documentation, such as test results, for any efficacy, performance or similar claims made on or about the Product or its packaging or labeling; and (iii) be in compliance with applicable law, statute, order, decree, consent decree, judgment, rule, regulation, ordinance or other pronouncement having the effect of law whether in the United States, any foreign country, or any domestic or foreign state, county, city or other political subdivision or of any governmental or any regulatory agency, regulatory authority, or regulatory body having jurisdiction over a Party or its operations, facilities, or supply of the Products (collectively, a “Regulatory Authority”). 
  3. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, LIV PROCESS MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT OR ANY OTHER MATTER COVERED BY THIS AGREEMENT, INCLUDING RELATING TO DISINFECTION OR STERILIZATION. LIV PROCESS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY PERSONS HEALTH OUTCOMES BEFORE, DURING OR AFTER THE USE OF THE PRODUCT.  THE PRODUCT IS NOT TO BE USED FOR ANY DIAGNOSTIC PURPOSES.  ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED.
  4. General Indemnification. Each Party shall indemnify, defend and hold harmless the other Party and its affiliates, employees, agents, and representatives from and against any and all costs, liabilities, losses, and expenses (including, without limitation, attorneys’ fees) resulting from any claim, suit, action, or proceeding brought by a third party against such other Party and its affiliates, employees, agents, or representatives, arising out of any breach of any of its representations, warranties, covenants, or agreements set forth in the Agreement.  The failure of a Party to provide to the other Party notice of any such claim, suit, action, or proceeding shall not relieve it of its obligations hereunder, except to the extent that it shall have been materially prejudiced by such failure.
  5. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS OR LOSS OF GOODWILL) SUFFERED OR INCURRED IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS OR LICENSES GRANTED HEREUNDER, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS IMPOSED HEREUNDER, EVEN IF SUCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING LIMITATION OF LIABILITY REFLECTS DELIBERATE AND BARGAINED FOR ALLOCATION OF RISKS AND IS INTENDED TO BE INDEPENDENT OF ANY EXCLUSIVE REMEDIES.   
  6. Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict of law provisions.  Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state courts and Federal courts located in Wilmington, Delaware.  The Parties agree to submit to the jurisdiction of, and that venue is proper in, those courts in any such legal action or proceeding.
  7. Severability; Enforcement. If any provision of this Agreement is held by a tribunal of competent jurisdiction to be illegal, invalid, or otherwise unenforceable in any jurisdiction, then to the fullest extent permitted by law (i) the same shall not effect the other provisions of this Agreement, (ii) such provision shall be deemed modified to the extent necessary in the tribunal’s opinion to render such provision enforceable, and the rights and obligations of the Parties shall be construed and enforced accordingly, preserving to the fullest extent the intent of the Parties as set forth herein, and (iii) such finding of invalidity, illegality, or unenforceability shall not affect the validity, legality, or enforceability of such provision in any other jurisdiction.