Last Updated: December 11, 2017
1. Entire Agreement; Modification.
Buyer purchases the Product and is responsible for the collection the required specimens (such as urine, blood and tissue) from the pet (the “Specimen”). Buyer is responsible for shipping the Specimen to Sentinel in accordance with Sentinel’s instructions. The Services involve testing the Specimen for the types of canine cancers indicated on the Product description. The Products and Services are for canine use only. Sentinel will only release test results to a licensed veterinarian. If you are an individual, Sentinel will not release the test results directly to you, but will release the test results to the licensed veterinarian of your choice. Sentinel represents and warrants that it will perform the Services in a professional and workmanlike manner and in compliance and in accordance with the provisions of these Terms.
THE USE OF THE PRODUCT AND SERVICES REQUIRE THE CONSULTATION OF A VETERINARIAN. THE SERVICES ARE NOT THE PROVISION OF VETERINARY SERVICES, AND USING THE SERVICES, DOES NOT CREATE A PATIENT-RELATIONSHIP BETWEEN SENTINEL AND YOUR PET, OR YOU AND SENTINEL. IT IS NOT A SUBSTITUTE FOR A CONSULTATION WITH A VETERINARIAN LICENSED TO PRACTICE IN YOUR JURISDICTION.
In order for Sentinel to provide the Services, Buyer agrees to comply with any instructions provided by Sentinel, including but not limited to with respect to shipping instructions to send the Specimen to Sentinel. Sentinel will not be responsible for any issues resulting from Buyer’s failure to comply with any instructions provided by Sentinel. Sentinel will have sole discretion in determining whether a Specimen was shipped improperly and whether such improperly shipped Specimen is damaged or otherwise compromised such that the Services cannot be performed.
The Products and Specimens may be subject to export and import restrictions under applicable laws. It shall be the responsibility of Buyer to comply with all import and other export requirements and other similar customs rules and regulations related thereto. Buyer shall provide reasonable proof of such compliance to Sentinel upon request.
If a failure of Buyer to perform any of its obligations within the timeframes set forth in these Terms prevents Sentinel from timely performing its obligations, then the relevant dates of Sentinel’s performance will be extended by an amount equal to the delay caused by Buyer.
3. Pricing and Payment Terms.
The price for a Product that includes a single Specimen Service pack includes the price of the testing Services. For Products that contain multiple Specimen collection kits, the price of the Services are not built into the price of the Product. Sentinel will invoice Buyer for the price of the Services at Sentinel’s then-applicable rate, as set forth on the Product order page of Sentinel’s website. Buyer shall pay to Sentinel the invoiced price associated with the performance of the Services at the then-applicable rate. Unless otherwise agreed in writing by Sentinel, the terms of payment under these Terms shall be net thirty (30) days from the date of invoice. For purposes of payment, each order and shipment shall be considered a separate contract and Buyer shall not be entitled to set-off against any amounts owing or alleged to be owing from Sentinel to Buyer for adjustments, set-offs or claims hereunder. Buyer agrees to pay (a) interest on the unpaid portion of any past due invoices at the rate of one (1%) percent per month, or the legal maximum allowed interest rate, if less, (b) a late payment fee of $25.00 and (c) all reasonable and necessary costs and expenses incurred by Sentinel in collecting any amounts due and owing, including but not limited to reasonable attorneys’ fees and all litigation expenses.
4. Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order.
You acknowledge that the amount billed may vary due to promotional offers, changes in applicable taxes or other charges, and you authorize us (or our third party payment processor) to charge your payment method for the corresponding amount.
5. Pricing and Availability
All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice. We will not, however, be able to notify you of changes in any applicable taxes.
All of our Services are subject to availability, and we reserve the right to reject all or part of an Order, to discontinue offering certain Services without prior notice. We attempt to display as accurately as possible the colors and images that appear on the Site. We cannot guarantee that your computer monitor’s display of any color will be accurate.
We will collect applicable sales tax on Services for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
7. Delivery and Delays.
Products will be shipped, using Sentinel’s standard methods for packaging and shipping, to the address provided on Buyer’s order form on or about the estimated shipping date set forth on the order confirmation, subject to Product availability. Products shall be deemed delivered to the Buyer upon Sentinel’s delivery of the Product to the carrier selected by Sentinel and Sentinel shall not be liable for any delays, loss or damage in transit. If Buyer orders more than one unit of Product, Sentinel may, in its sole discretion, without liability or penalty, make partial shipments of Product to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s order form. Title and risk of loss passes to Buyer upon delivery of the Product to the carrier.
Buyer shall inspect and examine all Products upon delivery thereof, and such Products shall be deemed accepted by Buyer unless Sentinel receives a written notice specifically describing the purported defect or nonconformity within three (3) days of delivery. Failure to provide such written notice within such time period shall be deemed an unqualified acceptance and waiver of any rights to return the Products.
8. Intellectual Property.
Except as expressly set forth below, nothing in these Terms shall be construed as a grant or transfer to Buyer of any license or other rights or interests in or to any patent, trademark, copyright, trade secret, invention or other intellectual property held by Sentinel or applicable to the Products or Services.
Buyer retains all right, title and interest in and to the Specimen and any business information or data provided through Buyer’s use of the Products and Services, including without limitation, any testing and diagnostic information, excluding any intellectual property rights applicable to the Products or Services (“Buyer Data”). Notwithstanding the foregoing, Buyer shall not, and shall not permit any third party to, use the Buyer Data to research, develop, or commercialize any tests, including without limitation diagnostic or genomic tests. Subject to these Terms, Buyer hereby grants Sentinel an irrevocable, perpetual, worldwide royalty-free, fully paid-up, nonexclusive, sub-licensable (through multiple tiers) and assignable right and license to use and disclose Buyer Data that Sentinel may access in connection with the Services, to aggregate, publish, modify, create derivative works from and otherwise commercialize products and services for Sentinel’s internal product development and business purposes, to conduct market research and analysis and related sales activities, and to prepare and issue normative and benchmark data, provided that Sentinel shall not disclose such data in a form and/or format that includes any direct identifiers of Buyer except as permitted by the privacy statement. As between Sentinel and Buyer, Sentinel shall own all right, title, and interest in and to all intellectual property rights in all materials, products and services developed by Sentinel or its licensees, or on any of their behalf of Sentinel by third parties, based on or including as a component thereof any such information as described above, and all generalized knowledge, skill, know-how and expertise relating to such information.
Each party represents and warrants that it has: (a) all requisite legal and corporate power to execute and deliver these Terms, (b) taken all corporate action necessary for the authorization, execution and delivery of these Terms, (c) no agreement or understanding with any third party that interferes with or will interfere with its performance of its obligations under these Terms, (d) obtained and will maintain all rights, approvals and consents necessary to perform its obligations and grant all rights and licenses granted under these Terms, and (e) taken all action required to make these Terms a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
10. Limitation of Liability.
SENTINEL’S AGGREGATE LIABILITY, WHETHER ARISING FROM BREACH OF AGREEMENT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE SHALL IN NO EVENT EXCEED THE TOTAL PRICE PAID BY BUYER TO SENTINEL HEREUNDER IN THE NINETY (90) DAYS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL SENTINEL OR ANY OF ITS AFFILIATED COMPANIES OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR PROFITS, BUSINESS INTERRUPTION OR LOSS OF USE, LOSS OF DATA, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES WHETHER ARISING FROM BREACH OF AGREEMENT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SENTINEL OR ANY OF ITS AFFILIATED COMPANIES OR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANY PROVISION IN THE AGREEMENT TO THE CONTRARY, BUYER AGREES THAT SENTINEL AND ITS OFFICERS, INVESTORS, OWNERS, BOARD OF DIRECTORS, MANAGERS, EMPLOYEES, CONTRACTORS, VENDORS AND SUPPLIERS (COLLECTIVELY “INDEMNIFIED PARTIES”) IN NO WAY ASSUME THE PROFESSIONAL OR OTHER DUTIES AND RESPONSIBILITIES OF BUYER OR BUYER PERSONNEL IN THE OPERATION OF BUYER FACILITIES, VETERINARY PRACTICE OR OPERATIONS, INCLUDING WITHOUT LIMITATION THE USE OF ANY TEST OR OTHER DIAGNOSTIC RESULTS PRODUCED BY THE PRODUCTS. SENTINEL AND ITS VENDORS DO NOT GUARANTEE THE QUALITY, ACCURACY OR FITNESS OF ANY DATA OBTAINED BY USING THE PRODUCTS OR SERVICES, AND ANY SUCH DATA MUST BE USED AT BUYER’S SOLE RISK. BUYER AGREES THAT BUYER IS RESPONSIBLE FOR ITS INSPECTION AND QUALITY CONTROL PROGRAMS AND IT WILL NOT USE THE PRODUCTS OR SERVICES AS A SUBSTITUTE FOR ANY OF ITS PROGRAMS. BY USING THE PRODUCTS OR SERVICES, BUYER ACKNOWLEDGES AND AGREES THAT IT UNDERSTANDS AND AGREES TO THE TERMS AND CONDITIONS CONTAINED IN THIS LIMITATION OF LIABILITY AND ALL OTHER INSTRUCTIONS, WARNINGS, CAUTIONS AND NOTICES MARKED ON OR PROVIDED WITH THE PRODUCTS OR SERVICES.
EXCEPT AS OTHERWISE PROVIDED HEREUNDER, THE PRODUCTS ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS. ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, OR FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED AND EXCLUDED.
CALIFORNIA RESIDENTS HEREBY WAIVE RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
BUYER ACKNOWLEDGES THAT ANY WARRANTIES APPLYING TO ANY SERVICES SUPPLIED BY THIRD PARTIES ARE LIMITED TO THOSE OFFERED BY THE PROVIDER THEREOF AND THAT SENTINEL SHALL HAVE NO LIABILITY WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO THE VETERINARIAN’S INTERPRETATION OF THE RESULTS OF THE SERVICES AND BUYER’S USE OF THE RESULTS OF THE SERVICES.
Buyer agrees to indemnify, defend and hold harmless the Indemnified Parties from any and all damages, judgments, losses, claims, demands, and/or causes of action arising from or related to Buyer’s use of the Products, Specimens or Services, including, but not limited to the occurrence or alleged occurrence of processing errors by Buyer or Buyer’s failure to comply with applicable laws, rules or regulations, including without limitation those related to the shipment or disposal of the Products or Specimens.
12. Governing Law and Jurisdiction.
These Terms and the transactions they contemplate, including without limitation their interpretation, construction, performance and enforcement shall be governed by the laws of the State of North Carolina, U.S.A. without reference to conflict or choice of law provisions, as applicable to contracts made and performed entirely within such State. The International Convention on the Sale of Goods, and other international treaties that are not mandatory with respect to contracts made and performed entirely in North Carolina, shall not apply. The exclusive forum for the resolution of any dispute relating to these Terms shall be in the state courts of North Carolina, U.S.A., or the United States District Court for the Eastern District of North Carolina and Buyer agrees to personal jurisdiction of such courts over Buyer with regard to any dispute relating to these Terms and agree to service of process on Buyer by e-mail to the address Buyer has submitted on the Site, if any, and by any other means permitted by law.
13. Force Majeure.
Sentinel may suspend or delay performance of any of its obligations under these Terms, in whole or in part, without liability to Buyer by promptly notifying Buyer of the nature and estimated duration of the suspension period in the event of: act of God, war, riot, fire, explosion, terrorist action, accident, lack of adequate fuel, power, compliance with governmental requests, laws, regulations, orders or actions, breakage or failure of machinery or apparatus, national defense requirements or any other event, whether or not of the classes enumerated herein, beyond the reasonable control of Sentinel, which event renders the performance of the obligation commercially impracticable.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by Buyer without the prior written consent of Sentinel. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Sentinel’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.