Kathinka Labs: Terms and Conditions
BY submitting your order, you ACKNOWLEDGE YOU are deemed to have read, understood, and agreed to the following:
Please read these Terms and Conditions (the “Terms”) carefully before submitting to Kathinka Labs, a division of Kathinka Engineering, Inc. (“Kathinka”) any order for laboratory analysis. By submitting an order, you, designated herein as the “Customer,” are acknowledging that you are deemed to have read, understood and agreed to the Terms.
- Scope of Services. Customer desires to hire Kathinka to perform laboratory analysis on a sample submitted by Customer for Customer-specified variables (“the Lab Analysis”) and to prepare a written report of the results of the Lab Analysis to the Customer. Kathinka has no obligation or duty to Customer beyond providing Customer with the results of the Lab Analysis. Kathinka has no obligation or duty to communicate the results of the Lab Analysis to any third-party, including local, state, or federal government, governmental agency, regulatory authority, and any non-governmental company or organization. It shall be the sole responsibility of Customer to identify and to satisfy any obligations or duties of any kind that may arise from the results of the Lab Analysis.
- Customer’s Representations and Warranties. By submitting an order for the Lab Analysis, Customer represents and warrants:
- All samples provided by Customer to Kathinka are samples prepared and owned by Customer; and
- Customer did not and will not submit any samples prepared by or owned by any third-party.
- Confidential Information. During the course of the Lab Analysis, Kathinka and Customer may disclose to the other non-public information that the party deems confidential and proprietary (“Confidential Information”). The party which will disclose the Confidential Information is referred to herein in such capacity as the “Disclosing Party,” and the other Party is referred to herein in such capacity as the “Receiving Party.” As to the results of the Lab Analysis, Kathinka is the Disclosing Party and Customer is the Receiving Party. Kathinka and Customer recognize the inherent value of keeping Confidential Information confidential. Kathinka and Customer agree to the following measures to protect Confidential Information from improper and unauthorized use and/or disclosure.
- All information disclosed is presumed to be Confidential Information. However, the results of the Lab Analysis may be used, disclosed and disseminated by Customer in Customer’s sole discretion.
- The Receiving Party agrees that all Confidential Information shall be and at all times shall remain the sole and exclusive property of the Disclosing Party, with the exception of the results of the Lab Analysis.
- Except as expressly permitted herein, the Receiving Party agrees not to use or disclose Confidential Information for any purpose other than the Lab Analysis.
- As between them, Kathinka and Customer may use or disclose the Confidential Information to the extent necessary to prosecute or defend any claim, demand, suit or other proceeding, but only after taking reasonable steps to protect the confidentiality of the Confidential Information, such as through a Stipulated Protective Order.
- The Receiving Party may use or disclose Confidential Information to the extent it may be required by law, subpoena, court order, or similar process, provided that the Receiving Party shall immediately notify the Disclosing Party of any such third party request and, if requested, cooperate with the Disclosing Party as it takes lawful action to protect the confidentiality of the Confidential Information.
- Kathinka may use or disclose the results of the Lab Analysis to the extent it may be required by law, subpoena, court order, or similar process, and provided that, if permitted by law, Kathinka shall first notify Customer of any third party request before Kathinka complies with the request.
- Disclaimer of Warranties. Kathinka takes measures to perform reliable lab analysis and believes THAT the results of the lab analysis ARE accurate. However, Kathinka provides no guarantee, representation, certification, or express or implied warranty as to the reliability or accuracy of THE lab analysis or the results of the lab analysis.
- Limited Remedies.
- In no event shall Kathinka be liable to the customer or to any third party for any Actual, consequential or punitive damages arising from or related to the Lab Analysis or the results of the lab analysis.
- In no event shall Kathinka be liable to customer for any claims, causes of action, losses, damages, judgments, fines, penalties, costs, or expenses arising from or related to the lab analysis and the results of the lab analysis, including but not limited to, customer’s use, interpretation, reliance upon, dissemination, OR actions and inactions.
- In no event shall Kathinka be liable to ANY third-partY for any claims, causes of action, losses, damages, judgments, fines, penalties, costs, or expenses arising from or related to the lab analysis and the results of the lab analysis, including but not limited to, the third-party’s use, interpretation, reliance upon, dissemination, actions, and inactions.
- In no event shall Kathinka be liable to ANY third-partY for any claims, causes of action, losses, damages, judgments, fines, penalties, costs, or expenses arising from or related to customer’s breach of customer’s representations and warranties set forth above.
- Indemnification. Customer shall defend, indemnify, save, and hold harmless Kathinka, its officers, directors, affiliated companies, employees, agents, successors, and assigns (collectively, the “Indemnitees”) from and against any and all liabilities, losses, damages, judgments, fines, penalties, costs, or expenses (including all reasonable attorneys’ fees) that any one or more of the Indemnitees may incur in connection with any claim demand, suit, cause of action, investigation, arbitration, or other proceedings (including, without limitation those brought or asserted by third-parties or any governmental authority) arising from or related to the Lab Analysis, the results of the Lab Analysis, or Customer’s breach of Customer’s representations and warranties set forth above.
- The Terms shall be construed as a whole according to their fair meaning, and neither for nor against either party hereto, and without any presumption or rule of construction allowing the terms of a document to be more strictly construed against the party who prepared it.
- Governing Law. The Terms shall be governed by and construed in accordance with the laws of the State of Colorado and the United States of America. Any legal action or proceeding with respect to the Terms shall be brought only in the courts of Colorado. By accepting the Terms, Customer accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the Colorado courts and hereby irrevocably waives any objection to suit in Colorado, including, without limitation, forum non conveniens.
4829-2584-0694, v. 2