Terms and Conditions
This document sets forth the terms and conditions (“Terms”) under which SENSFY, LLC, an Ohio limited liability company (“Sensfy,” “we,” “us,” “our,” etc.) provides products and services (“Products”) to the entity or person named as the “customer,” “purchaser,” or “buyer” (“Customer,” “you,” “your,” etc.). Please read these Terms carefully before you use the Sensfy Website (the “Site”) or purchase and/or use any Products. By using the Site or purchasing and/or using any Products, you accept and agree to be bound and abide by these Terms. If you do not want to agree to the Terms, you must not access or use the Site nor purchase or use Products. THESE TERMS TAKE ABSOLUTE PRECEDENCE AND PREVALENCE OVER ANY TERMS AND CONDITIONS OF THE CUSTOMER. IN THE EVENT OF ANY INCONSISTENCIES BETWEEN ANY DOCUMENT OF THE CUSTOMER AND/OR BETWEEN THE CUSTOMER AND SENSFY AND/OR ANY DOCUMENT ANCILLARY THERETO AND THESE TERMS, THESE TERMS SHALL CONTROL. SENSFY AND CUSTOMER EXPRESSLY AGREE THAT SENSFY MAY MODIFY THESE TERMS AND CONDITIONS FROM TIME TO TIME, AND SUCH MODIFICATIONS SHALL BE BINDING UPON THE CUSTOMER AS OF THE DATE OF SUCH MODIFICATIONS.
- General Site Terms. We hereby grant you a limited right to access and make personal use of the Site for NONCOMMERCIAL PURPOSES ONLY and only to the extent such use does not violate these Terms including, without limitation, the prohibitions listed in these Terms. Except as otherwise provided in the preceding sentence, you may not modify copy, reverse engineer, decompile, create derivative works, distribute, republish, commercially exploit, or upload any of the material on this Site without prior, written consent from us. No intellectual property or other rights in and to this Site — other than the limited right to use set forth above — are transferred to you. WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIS SITE OR ITS CONTENTS, WHICH ARE PROVIDED FOR USE “AS IS.” WE DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THIS SITE AND ANY WEBSITE WITH WHICH IT IS LINKED. WE ALSO DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES AS TO WHETHER THE INFORMATION ACCESSIBLE VIA THIS SITE IS ACCURATE, COMPLETE, OR CURRENT. It is your responsibility to evaluate the accuracy and completeness of all information, opinions, and other material on this Site. To the fullest extent permitted by applicable laws, we and our employees, agents, suppliers, and contractors shall in no event be liable for any claims, charges, demands, damages, liabilities, losses, and expenses of whatever nature and howsoever arising – including, without limitation, any compensatory, incidental, direct, indirect, special, punitive, or consequential damages, loss of use, loss of data, loss caused by a computer or electronic virus, loss of income or profit, loss of or damage to property, claims of third parties, or other losses of any kind or character — even if we have been advised of the possibility of such damages or losses arising out of or in connection with the use of this Site or any website with which it is linked. You assume total responsibility for establishing such procedures for data back up and virus-checking as you consider necessary.
- Digital Millennium Copyright Act Compliance. If you have any copyright concerns about any materials posted on this Site by others, please let us know. We comply with the applicable provisions of the Digital Millennium Copyright Act (17 U.S.C.A. § 512). Please provide us with written notice (“Notice”) by contacting our Designated Agent at the following address:
30350 Bruce Industrial Parkway
Solon, OH 44139
To be effective, the Notice must include the following:
- A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, (“Complaining Party”) of an exclusive right that is allegedly being infringed upon;
- Information reasonably sufficient to permit us to contact the Complaining Party, such as an address, telephone number, and, if available, an electronic mail address;
- Identification of the allegedly infringing material on the Site (“Infringing Material”), and information reasonably sufficient to permit us to locate such material on the Site;
- Identification of the copyrighted work claimed to have been infringed upon (“Infringed Material”), or, if multiple copyrighted works at a single site are covered by a single Notice, a list of each copyrighted work claimed to have been infringed (please be specific as to which Infringing Material is infringing on which Infringed Material);
- A statement that the Complaining Party has a good faith belief that use of Infringing Material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the Notice is accurate, and, under penalty of perjury, that the Complaining Party is the owner or is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- The Site is intended for persons having the legal capacity to be bound by these Terms, or acting with the express or implied consent of their parent or legal guardian. By using our Site, you represent and warrant that (i) you are over 18 years of age; and, (ii) that you have the right, authority, and capacity to accept these Terms and abide by all of the terms and conditions set forth herein. Children younger than 18 years of age may not register and use the Site under any circumstances.
- Disclaimer on scope of results. Test results do not constitute legal or clinical advice on the presence or absence of the SARS-CoV-2 virus or any related virus or bacteria. The results given should be used solely for general informational purposes. A NON-DETECT test result does not guarantee absence of virus in the tested space nor does a POSITIVE test result guarantee presence of the virus in the tested space nor that the virus is viable to cause infection. Customer is cautioned and hereby acknowledges that tests can produce false POSITIVE or false NON-DETECT results. Customer agrees to follow current guidelines from public health officials regarding safe working environments and proper Personal Protective Equipment (“PPE”) related to the SARS-CoV-2 virus and shall not rely on Sensfy test results. Customer acknowledges that (i) neither the Products nor their use for any specific purpose has been endorsed or recommended by any federal, state, regional or local public health body or any other governmental agency, and (ii) Sensfy operates an independent laboratory that is not affiliated with any public health body or other governmental agency.
- Customer Responsibilities for Sample Collection. The Customer is responsible for strictly following the instructions provided for sample collection. Failure to follow provided instruction may result in faulty, delayed, or unobtainable test results. Customer must record information about each sample taken using the provided Sample Record Sheet and retain it for reference. Customer must pack the sample in an insulated package with an ice pack immediately after completion of sampling and ship the package same day for next day arrival at Sensfy’s laboratory. Customer certifies, represents, and warrants that it is in compliance and shall take all necessary acts to remain in compliance with all applicable local, state, or federal laws regarding its acts or omissions hereunder and hereby agrees to defend, indemnify and hold Sensfy harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing.
- Sample Acceptance. Sensfy will only accept a sample for analysis when it arrives in the provided sealable sample return bag with serial # label affixed to the bag, otherwise sample will be rejected. Rejected samples will not be analyzed and Customer will not be eligible for a refund. Sensfy may, at its discretion, accept and analyze samples even when it is be apparent that sampling, packaging, or shipping instructions were not followed, although Customer is hereby cautioned that results may not be reliable.
- Sample Retention and Disposal. Samples will be disposed immediately after analysis or if rejected upon arrival. Sensfy does not retain samples nor return samples back to the Customer.
- Analysis Results and Turnaround Time. Upon completion of analysis of an accepted sample, Sensfy will provide to the Customer a POSITIVE or NON-DETECT test result in the form of an e-mail sent directly to the Customer from “email@example.com”. Customer is responsible for providing Sensfy with an accurate email address and ensuring that “firstname.lastname@example.org” is not blocked by a spam filter or firewall. Analysis results are delivered by midnight eastern time of the day results are due. Analysis turnaround time is counted from the day samples are received. Samples must be received by 10:30 AM eastern time to be considered received on that day. For example, a sample received by 10:30 AM and specified for same day analysis will be analyzed and results emailed by midnight of that same day. Sensfy does not accept samples on Saturdays or Sundays. Due to the unpredictable nature of sample analysis demand, Sensfy cannot guarantee analysis turnaround time. In the case that specified turnaround time is not met, Sensfy will refund Customer 25% of the cost of analysis for each day delay for a maximum refund of 75%. In no event will Sensfy be liable for consequential or incidental damages due to delays or nonperformance.
- Testing Supplies Delays. Sensfy shall not be held responsible for delays or nonperformance by causes beyond Sensfy’s immediate control, including but not limited to delays of vendors or carriers, acts of God, fires, pandemics, epidemics, labor strikes, governmental actions and material shortages. Any such delay will automatically and without penalty cause a corresponding extension of scheduled shipping dates. In all cases, scheduled shipping dates are understood to be approximate and in no event will Sensfy be liable for consequential or incidental damages due to delays or nonperformance.
- Risk of Loss. Until Sensfy accepts the sample in accordance with Sample Acceptance section of these Terms, entire risk of loss or damage to sample remains with the Customer. Sensfy is not responsible or liable for the action or inaction of shipment carrier.
- Returns and Refunds. All sales are final and no returns will be accepted nor refunds issued with the exception of a defective Product.
- Prohibited Use. Sensfy Products are intended to be used for environmental testing. Customer shall not use Products for human testing nor in any manner inconsistent with their intended use. Customer shall not use Products in a manner that violates local, state, or federal regulations and laws.
- Sensfy will make all reasonable efforts to maintain Customer’s confidentiality with regard to information and test results in connection with its performance for the Customer. Sensfy will use information it receives solely for the purpose of providing Products to the Customer. Customer shall treat all information and data it receives about Sensfy as proprietary and confidential, including but not limited Product specifications and analytical methods.
- Limited Warranty. The warranties set forth in these Terms and Conditions are the sole and exclusive warranties given by Sensfy in connection with any Products supplied by Sensfy. EXCEPT AS SPECIFICALLY SET FORTH IN THESE TERMS OR A SEPARATE WRITING, SENSFY EXPRESSLY DISCLAIMS ALL AND MAKES NO OTHER WARRANTIES WHETHER EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ANY SERVICES PERFORMED BY SENSFY ON BEHALF OF OR FOR CUSTOMER ARE PROVIDED ON AN “AS IS” BASIS AND SENSFY MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH SERVICES. SENSFY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO SUCH SERVICES. SENSFY HAS NO AND EXPRESSLY DISCLAIMS ANY DUTY TO VERIFY THIRD PARTY INFORMATION, INCLUDING, WITHOUT LIMITATION, LABELS, AND LABELLING OBLIGATIONS, AND CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT ANY RELIANCE BY CUSTOMER ON SENSFY’S SERVICES, WHICH MAY OR MAY NOT INCLUDE THIRD PARTY INFORMATION SHALL BE AT CUSTOMER’S SOLE RISK AND LIABILITY..
- Limited Liability.
- In General. SENSFY SHALL NOT BE LIABLE FOR AND DISCLAIMS ANY AND ALL LOST PROFITS AND ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, WHETHER ARISING OUT OF THE SERVICES, THE PRODUCTS, OR THE PERFORMANCE BY SENSFY HEREUNDER TOGETHER WITH ANY LOSS OR DAMAGE DIRECTLY OR INDIRECTLY ARISING FROM THE MANUFACTURE, SALE OR USE OF ITS PRODUCTS OR ITS PERFORMANCE OF WORK, INCLUDING LABORATORY ANALYSIS. IN NO EVENT SHALL SENSFY HAVE ANY LIABILITY FOR DELAYS IN SHIPMENTS, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH CLAIM IS BROUGHT IN TORT, BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHER THEORY OF LAW OR EQUITY
- Exceptions. THE LIABILITY LIMITATIONS SET FORTH IN THIS SECTION 12 SHALL NOT APPLY TO DAMAGES OR LIABILITIES ARISING FROM: (i) A MATERIAL BREACH BY SENSFY OF THESE TERMS, OR (ii) PERSONAL INJURY OR DEATH TO ANY PERSON OR DAMAGE TO ANY REAL OR TANGIBLE PERSONAL PROPERTY DIRECTLY AND SOLELY CAUSED BY SENSFY’S WILLFUL MISCONDUCT, RECKLESS ACTS OR OMISSIONS, OR SENSFY’S GROSSLY NEGLIGENT ACTS OR OMISSIONS.
- Intellectual Property. Customer shall have no rights with respect to any of Sensfy’s existing or subsequently-acquired or developed Intellectual Property, as defined below, rights or trade secrets or confidential information of Sensfy, and Customer hereby acknowledges that it shall not acquire any rights in respect thereof and that all such trade secrets and confidential information are and shall remain vested in or controlled by Sensfy. “Intellectual Property” for purposes of these Terms means (i) patents, patent applications, provisional applications, patent disclosures; (ii) trademarks, service marks, trade names, trade dress, logos, slogans, domain names; (iii) copyrights and mask works and all registrations and applications for registration thereof; (iv) computer software, software applications and platforms, websites, disks, disk drives, data, data bases and user documentation and audio visuals, domain names, and text materials; (v) all trade secrets, research and development materials, processes, procedures, know how, ideas discoveries, inventions, customer lists, supplier lists, formulas, drawings and designs, technical data, marketing, financial and business plans; (vi) advertising materials currently or in the future utilized by the Sensfy; and (vii) copies and tangible embodiments thereof (in whatever form or medium), and related documentation and goodwill.
- Customer shall indemnify, defend and hold harmless Sensfy and its affiliates, members, investors, managers, officers, employees, representatives, and their successors in interest and assigns (collectively, the “Indemnified Parties”) from and against any and all losses, damages, or expenses of whatever form or nature, including reasonable attorney’s fees and other costs of legal defense, whether direct or indirect, that they, or any of them, may sustain or incur as a result of any act, statement or omission of the Customer, including, without limitation, the use of the Site and/or Sensfy products, which use is not in strict conformance with the instructions of Sensfy or these Terms, or any unauthorized statement or false statement made by Customer regarding the Products or their use by Customer or others. The indemnification obligations under this Section shall continue indefinitely.
- All orders in all respects are subject to, and governed by the laws of the State of Ohio. Customer agrees that it shall submit itself exclusively to the venue and jurisdiction of the courts of Cuyahoga County, Ohio or the United States District Court of Ohio, Eastern Division, in conjunction with all claims, allegations, causes of action or legal proceedings related to or arising from an Order and/or Quotation, expressly waiving its rights to any other jurisdiction or venue which may be applicable to its place of business.
- Attorney Fees. Customer shall be liable to Sensfy for reasonable attorney fees and costs incurred by Sensfy in enforcing any of its rights hereunder. In addition, Customer shall be liable to reimburse Sensfy for all costs incurred, including time spent by Sensfy employees, should Sensfy be required to respond to legal process related to services rendered to Customer.
- No Other Agreements. These Terms and Conditions embody the whole agreement of the parties and supersede all previous communications and representations either verbal or written. Addendums to these Terms and Conditions will only apply and be valid if agreed to by both parties in writing.
- Severability. The invalidity or unenforceability, in whole or in part of any provision, term or condition hereof shall not affect in any way the validity or enforceability of the remainder to these Terms and Conditions, the intent of the parties being that the provisions be severable.
- Headings. The headings to the paragraphs and sections throughout these Terms are for convenience of reference only, and the words contained herein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or the meaning of the provisions of these Terms.
- Waiver. Customer agrees that the failure of Sensfy at any time to require performance of any of the provisions in these Terms shall not operate as a waiver of its right to require strict performance of the same or like provisions, or any other provisions hereof and/or thereof, at a later time.
- Assignment. Customer shall not assign or transfer these Terms or any Agreement, in whole or in part, whether by means of merger, reorganization, combination, sale of assets, change of control, operation of law or otherwise, without Sensfy’s prior written consent (which may be withheld in Sensfy’s sole and absolute discretion), and any assignment or attempt to do so without such consent will be void and of no effect. These Terms will only inure to the benefit of the parties and their respective permitted successors and assigns, and, except as expressly set forth in these Terms, there are no third-party beneficiaries to these Terms.
- Notices. All notices, requests, directions, approvals or other communications to be provided in these Terms will be in writing and will be deemed to have been sufficiently given (i) upon receipt if delivered in person; (ii) upon delivery if by an internationally-recognized mail service (e.g., FedEx), overnight courier, or certified or registered mail, postage pre-paid, return receipt requested; or (iii) on the date transmitted if by email; provided that the original will promptly follow by internationally-recognized mail service or overnight courier. All notices will be sent to the applicable party at the address(es) as instructed in writing by such party.
- Waiver of Jury Trial. TO THE EXTENT ALLOWED BY APPLICABLE LAW, SENSFY AND CUSTOMER MUTUALLY, EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY FOR ANY PROCEEDINGS, WHETHER IN LAW OR IN EQUITY, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS , OR ANY CONDUCT OR COURSE OF DEALING OF THE PARTIES, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PERSON. THIS WAIVER IS A MATERIAL INDUCEMENT TO SENSFY TO PERFORM HEREUNDER.