VIDIUM STANDARD TERMS & CONDITIONS OF SERVICE
(“Terms and Conditions”)
THE FOLLOWING IS A LEGAL AGREEMENT BETWEEN YOU AND VIDIUM LLC. BY CLICKING THE “I ACCEPT” BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, YOU UNDERSTAND IT, AND YOU AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THESE TERMS AND CONDITIONS, THEN YOU MAY NOT USE THE SERVICES AND DO NOT CLICK THE “I ACCEPT” BUTTON BELOW.
SCOPE OF THESE TERMS AND CONDITIONS
1.1 These Terms and Conditions apply to your use of any and all services offered by Vidium, LLC (hereafter referred to as “Vidium,” “We,” “Our,” or “Us”), whether you are an individual, veterinarian, veterinarian practice, oncologist, or pathology laboratory (hereafter referred to “Customer,” “You,” or “Your”). These Terms and Conditions outline Customer’s rights and explain the rights that Customer gives to Us by using the Services.
1.2 Customer’s use of the Services, information, materials, and products provided by Vidium are subject to these Terms and Conditions, the Order Form, and any additional terms that Customer agrees to, as discussed in Section 17.1 (collectively, the “Agreement”). The Agreement includes terms about future changes to the Agreement, limitation of Vidium’s liability, Customer’s wavier of class action, and resolution of disputes by arbitration instead of in court.
1.3 Please read the Terms and Conditions and all other terms referenced in this document carefully. THESE TERMS AND CONDITIONS CONTAIN TERMINOLOGY THAT IS DEFINED IN THE DEFINITIONS SECTION (SECTION 4) BELOW.
USE OF THE SERVICES
2.1 Vidium provides laboratory results based on diagnostic information and biological Samples provided to Us. We do not diagnose or treat pets or other animals. Diagnosis and treatment decisions should be made by a licensed veterinarian, and no decision should be based solely on Vidium’s diagnostic results or general literature. Vidium does not accept human specimens.
2.2 To use the Services, Customer must (a) be 18 years or older; (b) if not the pet owner, have the power or authority to enter into a binding contract with Vidium on behalf of the pet owner and not be barred from doing so under any applicable laws; and (c) be conducting its business in (or, if Customer is the pet owner, reside in) the United States. Customer also promises that any information submitted to Vidium is true, accurate and complete.
RIGHT TO CHANGE TERMS AND CONDITIONS
3.1 Vidium may occasionally make changes these Terms and Conditions, in whole or in part. Customer agrees to review these Terms and Conditions each time Customer submits an Order Form.
4.1 “Vidium” means Vidium, LLC, an Arizona limited liability company, with a place of business at 445 North 5th Street, Phoenix, AZ 85004.
4.2 “Vidium Improvements” means any Intellectual Property Rights comprised in or arising directly, indirectly, under or in connection with Vidium’s Background IPR.
4.3 “Background IPR” means any Intellectual Property Rights in existence and owned by either party before the Agreement (or arising during the Term but independently of the Services).
4.4 “Commencement Date” has the meaning in Section 6.1.
4.5 “Confidential Information” means all information (including but not limited to trade secrets) and materials (including but not limited to data, results, technical, financial, and business information or marketing strategies) disclosed by either party to the other party, and all information derived by the receiving party from any such information, and any other information that is either clearly designated by the disclosing party as being confidential to it (whether or not it is marked “confidential”) or which ought reasonably be considered confidential based on the information and context of the disclosure.
4.6 “Customer” means the pet owner, veterinarian, veterinary practice, oncologist, or pathology laboratory identified in the Order Form.
4.7 “Intellectual Property Rights” (or “IPR”) means rights in any inventions, discoveries, patents, copyrights, trademarks, service marks, registered designs, domain names, and applications or registrations for any of the foregoing, trade or business names, unregistered trademarks and service marks, original works of authorship, moral rights, rights in data, software and databases, rights in designs, models, know-how, processes, formulae, methods, techniques, protocols improvements, modifications, developments, rights under licences, consents, orders, statute or otherwise in relation to any such rights, and rights of the same or similar effect or nature, in any part of the world whether now known or future.
4.8 “Sample” means the biological material provided by Customer to Vidium for the performance of the Services, including but not limited to, serum, blood, tissue, plasma, urine samples or such other biospecimens.
4.9 “Order Form” means the form provided by Vidium and completed by the Customer containing the details of the requested Services.
4.10 “Services” means the laboratory diagnostic testing services as agreed between the parties and detailed in the Order Form and the resulting deliverable(s) or other products of the diagnostic testing services, including but not limited to a report of the results of the testing.
4.11 “Term” means the time period starting on the Commencement Date and ending on completion of the Services.
PRICES AND PAYMENT
5.1 If payment is conditional on Customer providing a Purchase Order number, Vidium must receive the Purchase Order number before it will begin Services.
5.2 Unless Vidium otherwise agrees in writing, Vidium will send an invoice to Customer for the total cost of Services after the Sample is received and has been determined by Vidium to be of sufficient quality to perform the requested Services. Invoices must be paid by Customer before Vidium provides the Services and delivers the report (or other deliverables). Customer shall pay the invoice no later than thirty (30) calendar days after receipt, and Vidium shall withhold delivery of any deliverables due until paid. Any failure to pay the amounts due (or reversal of payments or charges) within thirty (30) calendar days after the due date shall be considered overdue and, at Vidium’s option, shall accrue a late payment charge at 2% per month until paid, calculated from the original invoice date (or the maximum amount allowed by law). The invoiced cost of the Services do not include any applicable sales or service tax (including VAT), delivery charges, levies, duties or any other taxes (collectively, “Taxes”), and no such Taxes shall be collected or paid by Vidium on behalf of the Customer. Customer shall be solely responsible for separately paying any and all Taxes owed by Customer.
5.3 Customer may cancel an order for Services if Customer provides notice to Vidium before Vidium performs any Services, and Customer will not be charged for the Services. If Customer’s notice of cancellation is received by Vidium after the Sample has been received, Vidium reserves the right to charge Customer a processing fee upon such cancellation.
5.4 Vidium has the right to withhold or deduct amounts payable under the Agreement due to any breach of the Agreement by the Customer (or pet owner or other party) or, in the case where Customer has an outstanding invoice, to withhold or deduct such outstanding sums (by way of set-off or otherwise) owing to Vidium from sums due to the Customer under the Agreement.
5.5 If the Customer fails to pay any invoice according to the Agreement, Vidium shall be entitled to:
5.5.1 suspend or discontinue all or any part of the Services, including without limitation withholding any deliverables or results of the Services; and
5.5.2 cancel any outstanding orders, or refuse to accept any further orders, for Services.
Any actions taken by Vidium as permitted in this Section 5.5 will not affect Vidium’s rights to seek payments due or take any other actions available to it under the law or as otherwise provided in this Section 5.
USING THE SERVICES
6.1 Customer agrees to abide by these Terms and Conditions and all other terms of the Agreement, which governs Customer’s use of the Services when Customer submits and Order Form or Sample to Vidium (the “Commencement Date”).
6.2 The individual who submits the Order Form represents that he/she/they is authorized to agree to all terms of the Agreement and incur the expenditure on behalf of Customer (and, if Customer is not the pet owner, also is authorized to agree to all applicable terms of the Agreement on behalf on the pet owner).
7.1 The Customer shall have the responsibility for determining whether the Services and all results of the Services (for example, test reports) are fit, suitable and appropriate for their intended use, including without limitation, the appropriate treatment for the pet. If Customer is the pet owner, Customer must consult with a licensed veterinarian in making such determination.
7.2 The Customer must ensure that the Samples provided are sufficient and appropriate quality for the performance of the Services according to Vidium’s specifications. Vidium shall not be liable to Customer or any other person (including the pet owner, if Customer is not the pet owner) for any failure to perform the Services caused because of defective or contaminated Samples or the failure to meet quality standards or other specifications.
7.3 Any information provided to Customer by way of interpretation of the results of the Services by Vidium (including its third-party consultants, manufacturers, representatives and/or agents) is for general guidance only and not for treatment purposes. Vidium shall not be liable for any loss or damage suffered by any Customer, from any reliance by Customer or any other party on such information (including the pet owner, if Customer is not the pet owner).
7.4 Customer agrees that the limitations on Vidium’s liability are commercially reasonable because Vidium does not undertake a physical examination of the pet. If Customer is a veterinarian or veterinarian practice, then Customer is responsible for the diagnosis and treatment of the pet. If Customer is the actual pet owner, Customer acknowledges and agrees that a diagnosis and treatment, if any, must be obtained from a licensed veterinarian.
SAMPLES; SAFETY AND COMPLIANCE
8.1 Customer shall keep true, accurate and up-to-date records detailing the traceability of each Sample. The Customer shall immediately notify Vidium of any defect in the Samples that would render the Samples unsafe; or any error or omission in complying with Vidium’s specifications or other applicable instructions for the Samples or results; or any adverse events regarding the Samples.
8.2 Customer will provide Vidium with Samples from the United States only. Samples should be delivered at the Customer’s risk to Vidium in accordance with the instruction in the Order Form.
8.3 The Customer shall comply with all laws, rules and regulations and Vidium’s specifications relating to obtaining, supplying, transport, handling, and storage of the Samples.
8.4 Customer (if not the pet owner) hereby represents and warrants that all necessary consents have been obtained from the pet owner(s) prior to submitting the Order Form and agreeing to the terms of this Agreement, including without limitation, in respect of veterinarian/client confidentiality and in accordance with all applicable laws. Without limiting the generality of the foregoing, Customer (if not the pet owner) warrants and represents that it has obtained from the pet owner(s), or if Customer is the pet owner Customer hereby provides, consent permitting Vidium to: (a) use of the Samples in order to perform the Services under the terms of the Agreement; and (b) store, handle, process, use and destroy, in its discretion, any remainder or surplus Samples for its quality control, academic and/or commercial research and development purposes, and to maintain and further develop its product and service offerings, and to develop further diagnostic tests (collectively, “Business Purposes”). Customer hereby understands and agrees that Vidium will not return any Samples received from Customer.
SERVICE LIMITATIONS AND MODIFICATIONS
9.1 Notwithstanding anything to the contrary, Vidium may alter, suspend, or discontinue Services, in whole or in part, at any time and for any reason, without notice. Services may also periodically become unavailable or delayed due to equipment, interruptions, or for other reasons.
9.2 Because the state of the art in research and technology that Vidium uses to perform the Services may change or improve over time, Vidium accordingly may change its Services at any time, in its sole discretion. If the state of the art improves, Customer may wish to obtain additional Services from Vidium.
RIGHTS YOU GRANT US
Any and all outputs resulting from Vidium’s performance of the Services (including without limitation, genetic information, data, results, Intellectual Property Rights, products, reports) (collectively, “Outputs”) are owned by Vidium. Nothing in this Agreement shall restrict Vidium’s interest or rights in the Outputs, including without limitation, the right to use the Outputs for any and all Business Purposes or to disclose or sell to third parties, which may be in a format where the specific pet or pet owner cannot be identified.
CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICES AND ALL DELIVERABLES FROM THE SERVICES ARE PROVIDED "AS-IS" AND “AS AVAILABLE,” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND. VIDIUM MAKES NO REPRESENTATIONS AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS REGARDING SATISFACTORY QUALITY, ACCURACY, UTILITY, COMPLETENESS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. VIDIUM MAKES NO REPRESENTATIONS NOR DOES IT WARRANT, ENDORSE OR GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY OR SUCH THIRD PARTY’S ACTS OR OMISSIONS, INCLUDING ANY VETERINARIAN’S INTERPRETATION OF THE SERVICES OR THE RESULTS OF THE SERVICES, AND VIDIUM IS NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN CUSTOMER AND ANY THIRD PARTIES. NO ADVICE OR INFOMRATION, WHETHER ORAL OR IN WRITING, OBTAINED BY CUSTOMER FROM VIDIUM SHALL CREATE ANY WARRANTY ON BEHALF OF VIDIUM. THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
THIS SECTION DOES NOT AFFECT CUSTOMER’S STATUTORY RIGHTS AS A CONSUMER.
WARRANTY; LIMITATION OF LIABILITY; AND TIME FOR FILING CLAIMS
12.1 Subject to the Customer’s compliance with this Agreement, any claim by the Customer regarding any claimed defect in the performance of the Services must be provided by written notice to Vidium within seven (7) days after performance of the Services. If the Customer fails to notify Vidium of any claimed defect, Customer may not reject the Services or any results or deliverables, and Vidium shall have no liability arising for such claimed defect.
12.2 Vidium warrants it will perform the Services with reasonable skill and care in compliance with: (a) the Order Form, and (b) applicable laws and regulations pertaining thereto. Time for performance is not of the essence and shall not be made of the essence for the purposes of this Agreement.
12.3 IF THE CUSTOMER NOTIFIES VIDIUM IN WRITING THAT THE SERVICES DO NOT COMPLY WITH THE WARRANTY IN SECTION 12.2, CUSTOMER AGREES THAT THE SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH VIDIUM SERVICE OR DELIVERABLES IS FOR VIDIUM TO EITHER (A) RE-PERFORM THE DEFECTIVE SERVICES, OR (B) REFUND THE PRICE PAID BY THE CUSTOMER RELATING TO THE DEFECTIVE SERVICES. THE REMEDY IN THIS SECTION SHALL BE THE CUSTOMER’S EXCLUSIVE AND SOLE REMEDY AGAINST VIDIUM REGARDING ANY SERVICES AND ANY DAMAGES OR OTHER LIABILITY CAUSED BY OR ARISING FROM ANY SERVICES OR THIS AGREEMENT. SUBJECT TO THE LIMITATIONS UNDER THIS SECTION 12, VIDIUM’S TOTAL AGGREGATE LIABILITY TO THE CUSTOMER RELATED TO THE SERVICES OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, WILL IN NO CIRCUMSTANCES EXCEED THE PRICE PAID BY THE CUSTOMER FOR THE SERVICES FROM WHICH THE DAMAGES OR LIABILITY AROSE, AND THE CUSTOMER MUST MITIGATE ANY LOSS AND/OR DAMAGE ARISING FROM SUCH CLAIM.
IN NO EVENT WILL VIDIUM OR ANY OF ITS AFFILIATES, SUBSIDIARIES, SUCCESSORS OR ASSIGNS, OR ANY OF THEIR RESPECTIVE OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, ANY LOSS OF PROFIT, REVENUE, BUSINESS, SAVINGS AND/OR GOODWILL, WHETHER DIRECT OR INDIRECT); OR (B) THE DEATH OF ANY ANIMAL, REGARDLESS OF LEGAL THEORY.
The Customer (and any pet owner, if not the Customer) is advised to insure against any risk that may arise in connection with or result from this Agreement or the Services.
Nothing in this Agreement removes or limits Vidium’s liability for fraud, fraudulent misrepresentation, or the death or personal injury of any human caused by Vidium’s negligence, and if required by applicable law, its gross negligence.
CUSTOMER AGREES THAT ANY CLAIM AGAINST VIDIUM MUST BE COMMENCED (BY FILING A DEMAND FOR ARBITRATION UNDER SECTION 17.9 OR FILING AN INDIVIDUAL ACTION UNDER SECTION 17.9, WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO ANY CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.
THIS SECTION 12 APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Vidium is not liable or responsible for any delay due to an event beyond Vidium’s reasonable control, including a strike, riot, act of God, fire, sabotage, shortage of labor or material, inclement weather, war, the act of a third party shared by Vidium, or an epidemic or pandemic. If the Force Majeure Event continues for over thirty (30) days, either party may terminate or cancel all or any part of the Agreement, by giving written notice to the other party.
USE OF DELIVERABLES
The report forms and information included in the deliverable(s) provided by Vidium in connection with the Services contain content that constitutes Vidium Background IPR. The Customer and any pet owner agrees that, without advance written consent from Vidium, they will not directly or indirectly (a) use or disclose to any other entity or person (other than its employees or legal representatives, on a need to know basis, who are bound by or obligated to comply with the terms of this Agreement) any deliverable(s) or the content contained therein for any purpose other than the treatment of the pet for which the report is intended and not in any way that would harm or compete with Vidium’s business, or (b) create or allow a third party to create or re-create reports based on Vidium Intellectual Property Rights, Vidium Confidential Information, Vidium Improvements or Vidium Background IPR, contained in the deliverable(s) or the content therein or disclosed to Customer and/or any pet owner other than the treatment of the pet for which the deliverable was intended; provided however that the deliverable(s) may be disclosed to the extent required by applicable law or regulation, if Vidium is given prompt and advance written notice of such requirement and sufficient opportunity to object to the disclosure or to request confidential treatment before any disclosure. Customer acknowledges that substantial damage could be done to Vidium as a result of any breach of this Section 14 for which damages at law may not be an adequate remedy, and Customer agrees that the provisions of the Agreement preventing disclosure and use of Vidium Intellectual Property Rights, Vidium Confidential Information, Vidium Improvements and Vidium Background IPR may be specifically enforced by a court of competent jurisdiction.
15.1 Vidium and Customer shall retain ownership of their own respective Background IPR, and nothing in the Agreement will be deemed to grant to any other party any right, title or interest in the Background IPR of the other party.
15.2 Neither party may use the other party’s brand, trademarks, trade name, and/or logos without the express written permission of the other party.
15.3 Vidium shall own all Vidium Improvements and such Intellectual Property Rights (as defined in Section 4) existing prior to and arising under this Agreement.
TERM AND TERMINATION
16.1 This Agreement will continue to apply to Customer until expiration of the Term, or earlier termination by either Customer or Vidium as provided in this Section 16.
16.2 Vidium may terminate the Agreement immediately on written notice to Customer at Vidium’s sole discretion. Either party may terminate this Agreement if the other party commits a material breach of the Agreement and (if such breach is remediable) fails to remedy that breach within ninety (90) days of being notified in writing to do so.
16.3 Termination of the Agreement for any reason shall not affect any rights or liabilities accrued at the date of termination. Customer may not have any claims, damages, compensation or any similar payment arising out of the valid termination of the Agreement, nor to any payment for goodwill which may have been established, notwithstanding any provision or rule of law to the contrary.
16.4 Any provisions of this Agreement intended to survive expiration or termination shall survive, including: Sections 5.4, 5.5, 7.1, 7.3, 7.4, 8.1, 8.3, 8.4, 16.1, 16.3, 16.4, and Sections 1, 4, 9, 10, 11, 12, 13, 14, 15, 17 and 18 in their entirety.
17.1 ENTIRE AGREEMENT; MODIFICATION. Other than as stated in this Section 17.1 or as explicitly agreed upon in writing between Customer and Vidium, the Agreement constitutes all the terms and conditions agreed upon between Customer and Vidium with respect to the Services and supersedes any prior agreements in relation to the subject matter of this Agreement, whether written or oral. Please note, however, that certain aspects of Customer’s use of the Services may be governed by additional agreements. To the extent that there is any irreconcilable conflict between any additional terms and the terms of this Agreement, Section 18.9 controls and determines the priority. No amendment or variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives). Each party acknowledges that, in entering into the Agreement, it has not relied on, and shall have no right or remedy regarding, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Agreement. Each party irrevocably and unconditionally waives any right or remedy it may have to claim damages and/or rescind the Agreement for any misrepresentation (other than fraudulent misrepresentation) not contained in the Agreement. Customer’s standard terms of purchase are expressly excluded from the Agreement.
17.2 WAIVER. Vidium never waives its rights to insist on compliance with this Agreement or with the applicable laws governing the conduct of a business. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
17.3 NOTICE. Any notice required to be given under this Agreement shall be in the English language, in writing, and shall be delivered by recorded first class mail (deemed service after two (2) business days), or by email (headed “FORMAL CONTRACT NOTICE”) to each party required to receive the notice at its address as set out in the Order Form, and for Vidium, the address set out in Section 4.1.
17.4 INDEPENDENT CONTRACTORS. The parties are deemed independent contractors and neither may bind the other, except as mutually agreed by the parties in writing. Except as expressly provided, nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, nor authorise a party to make or enter into any commitments for or on behalf of the other party.
17.5 SEVERABILITY. If any court or competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
17.6 ASSIGNMENT. Vidium may assign the Agreement, and any of its rights under the Agreement, in whole or in part, and Vidium may delegate any of its obligations under the Agreement. Customer may not assign the Agreement, in whole or in part, nor transfer or sub-license your rights under the Agreement, to any third party.
17.7 INDEMNIFICATION. Customer agrees to indemnify and hold Vidium, its affiliates, subsidiaries, successors and assigns, and their respective officers, managers, directors, employees, and agents harmless from any claim, damages, liability, or loss, arising from any of Customer’s actions or inactions that violate this Agreement or any law or right of a third party.
17.8 EACH PARTY IS RESPONSIBLE FOR ITS OWN ATTORNEY’S FEES. Each party shall be responsible for the payment of its own costs (and not those of the other party) in connection with the Agreement.
17.9 GOVERNING LAW; JURISDICTION. The Agreement (and any non-contractual disputes/claims arising out of or in connection with them) are subject to the laws of the State of Arizona, United States of America, without regard to its choice of law or conflicts of law principles, except as provided in Section 17.10 below. Further, you and Vidium agree to resolve any dispute, claim, or controversy that relates to or arises in connection with the Agreement (and any non-contractual disputes/claims relating to or arising in connection with them) in accordance with the mandatory arbitration provisions set forth in Section 17.10, if applicable.
17.10 ARBITRATION AND GOVERNING LAW FOR COMMERCIAL ENTITIES. If the Customer is a practice, partnership or other business (and not the actual pet owner), any controversy or claim arising out of, or relating to, this Agreement, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. CUSTOMER WAIVES ALL RIGHTS TO A TRIAL BY JURY OR ANY COURT. If Customer files a claim or counterclaim, either Customer or Vidium may start arbitration proceedings. Customer must bring all claims in its individual business basis and not with any other individual or business or as part of a class action. CUSTOMER WAIVES ANY AND ALL RIGHTS TO BRING ANY CLAIMS RELATED TO THESE TERMS AND CONDITIONS AS A PLAINTIFF OR CLASS OR COLLECTIVE MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. All arbitration proceedings shall be held in Maricopa County, Arizona. There shall be one arbitrator, an attorney at law, who shall have expertise in business law transactions with a strong preference for an attorney knowledgeable in the medical testing industry. Each party to the arbitration shall be responsible for its own costs and expenses, including legal and filing fees; provided however, that the arbitrator shall award legal fees and other costs to the prevailing party. The decision of the arbitrator shall be final and binding on the parties, and judgment on the award entered by the arbitrator shall be entered in any Arizona court having jurisdiction thereof. This agreement to arbitrate shall survive any termination or expiration of Customer’s relationship with Vidium. Customer and Vidium agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). The parties agree that Arizona substantive law will govern (without regard to its choice of law or conflicts of law principles). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879.
17.11 NO CLASS ACTION
CUSTOMER AND VIDIUM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both Customer and Vidium agree in writing, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. An arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court. The provision shall survive any termination or expiration of the Agreement and Customer’s relationship with Vidium.
In these Terms and Conditions:
18.1 words expressed in the singular shall include the plural and vice versa;
18.2 words referring to a particular gender include every gender;
18.3 references to a person include an individual, company, body corporate, corporation, unincorporated association, firm, partnership, joint venture, government, state or agency of state;
18.4 the words and phrases other, including and in particular shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible;
18.5 references to any statute or statutory provision shall include: (a) any subordinate legislation made under it; (b) any provision which it has modified or re-enacted (whether with or without modification); and (c) any provision which subsequently supersedes it or re-enacts it (whether with or without modification) whether made before or after the date of your appointment; and
18.6 any defined terms that are not in this Glossary shall have the meaning given to them in the Order Form.
18.7 any obligation in the Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done; and
18.8 headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of these Terms and Conditions; and
18.9 If there is a conflict between the provisions of the documents which together form the Contract, the order of priority shall be: (a) these Terms and Conditions; (b) the Order Form; and (c) and other document referred to therein.
18.10 Vidium is an animal health company and thus all references throughout the terms and conditions to “pet” or “pets” refers to non-human animals not used for food or fiber production, unless otherwise permitted by Vidium.