DCNovations Terms & Conditions

These Terms and Conditions apply to the purchase and sale of products (and services) (collectively, “Products”) to you (“Client”) by Diagnostic Consulting Network, LLC, dba DCNovations (“we” or “DCN”) .

T&Cs BINDING: These Terms and Conditions and constitute the entire agreement (the “Agreement”) between the parties respecting the purchase of Products and supersede any and all prior agreements, promises, negotiations, or representations, written or oral, between the parties relating thereto. No representation, promise, or inducement regarding the Products has been made by either party that is not expressly set forth herein. If there is a conflict between these Terms and Conditions and any other document, the Terms and Conditions shall control.

PRICE AND PAYMENT:  The price charged for a Product shall be as set forth on our website at the time an order is placed, or as otherwise set forth in a quotation we issue. All prices are exclusive of all sales, use, and excise taxes, duties, customs, tariffs, and any other similar taxes or charges of any kind imposed by any governmental authority or quasi-governmental authority on any amounts payable by Client. Client shall be responsible for all such taxes and charges; provided, however, that Client shall not be responsible for any taxes imposed on, or with respect to, DCN’s income, revenues, gross receipts, personal or real property, or other assets. Terms of payment are within DCN’s sole discretion and unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept approved credit and debit cards and other payment methods outlined on our website. You represent that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order.  Client may not withhold payment of any amounts due and payable hereunder by reason of any set-off of any claim or dispute with DCN. 

INDEPENDENT CONTRACTOR:  DCN and Client are independent contractors and not agents, partners or joint ventures. DCN shall not sign any agreements or make any commitments on behalf of Client without express written authorization from Client.

INTELLECTUAL PROPERTY:  As between DCN and Client, DCN remains the sole and exclusive owner of all intellectual property rights in and to each Product and service made available and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, and trademarks and other intellectual property rights.  Client does not and will not have or acquire any ownership of these intellectual property rights in or to the Products made available through this Site or of any intellectual property rights relating to those Products or services.

DCN shall have the right to use and to refrain from using (in DCN’s discretion) Client’s name, likeness and biography in connection with its business and in advertising, marketing and promotion of its products and services without the agreement of the Client. 

CONFIDENTIALITY:  “Confidential Information” means (i) all information which is disclosed by either party (“OWNER”) to the other (“RECIPIENT”) verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary; and (ii) the terms, including without limitation, the pricing, of this Agreement and any proposals or other documents that preceded this Agreement.  Confidential Information may include, but not be limited to, trade secrets, documentation, formulas, data, inventions, techniques, marketing plans, employee information, financial information, and other confidential information concerning Owner’s business or organization.  In addition, Confidential Information may include information concerning any of Owner’s past, current, or possible future products or methods, including information about Owner’s research, development, engineering, purchasing, manufacturing, accounting, marketing, selling, leasing, and/or software (including third party software).Owner’s Confidential Information shall be treated as strictly confidential by Recipient and shall not be disclosed by Recipient to any third party except to those third parties operating under non-disclosure provisions no less restrictive than in this Section and who have a justified business “need to know”. This Agreement imposes no obligation upon the Parties with respect to Confidential Information which either party can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from Owner; (b) is or becomes generally known to the public without violation of this agreement; (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information; or (e) is required to be disclosed by court order or applicable law, provided notice is promptly given to the Owner and provided further that diligent efforts are undertaken to limit disclosure.

 LIMITATION OF LIABILITY:  Neither party shall be liable to the other party or any of its affiliates for any consequential, incidental, indirect, punitive or special damages (including loss of profits, data, business or good will) in connection with this Agreement, whether or not liability is based on breach of contract, tort, strict liability, breach of warranty, failure of essential purpose or otherwise, even if it is advised of the likelihood of such damages. The foregoing limitations and exclusions of liability shall not apply in the event of gross negligence or willful misconduct of a party. Except for gross negligence or willful misconduct, DCN’s liability to Client under this agreement shall not exceed the amount that Client has actually paid to DCN for the Products.  No claims against DCN may be brought against it after the first anniversary of the date the services under the Proposal were performed.

INDEMNITY:  Client shall indemnify, defend and hold DCN harmless from and against any third party loss, cost, expense or liability (including reasonable attorneys’ fees) arising out of the sale of Products to Client, including without limitation, personal injury and product liability claims, provided however that Client shall have no obligation to indemnify DCN for any claims arising out or as a result of (i) DCN’s  breach of these Terms and Conditions; or (ii) DCN’s gross negligence or willful misconduct.

LIMITED WARRANTY.  DCN warrants to Client that the Products will conform in all material respects to DCN’s published specifications for (a) for seven  days from the date of delivery of Products.  DCN expressly disclaims all other representations or warranties. DCN does not represent that the Products meet any particular governmental agency’s regulatory guidelines, rules or any applicable laws.  DCN shall not be responsible for the results of the tests or the manner in which Client uses the tests even if informed by Client.  Client’s only remedy for a breach of DCN’s warranty is to return the defective Product, in which case DCN may replace or repair the Product or refund the purchase price for such product, in DCN’s sole discretion.  EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, THE PRODUCTS ARE PROVIDED BY DCN ON AN “AS IS” BASIS. Client shall use the Products with prudence and appropriate caution, and DCN makes no other representations or warranties regarding the Products. Client is solely responsible for the use of the Products. In particular, the Products are not intended to replace the clinical skill of a medical practitioner or a medical practitioner’s independent professional judgement regarding patient diagnostics or a patient’s treatment. The Products should only be used by those who have been appropriately trained in their operation, function, capabilities and limitations.  The Products should not be relied upon, by itself, as the sole method of making any diagnosis or determining any treatment.  EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION DCN  MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM LAW, COURSE OF PERFORMANCE, COURSE OF DEALING, OR TRADE USAGE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND CLIENT ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY DCN, OR ANY PERSON ON DCN’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION.

The limited warranties set forth above do not apply unless: (a) Client gives written notice of the defect(s) to DCN immediately upon discovery; (b) if applicable, DCN is given reasonable opportunity to examine the relevant Products, and the defect(s) are verified by DCN.

The limited warranty set forth above does not apply if a defect results directly or indirectly from the following: (a) non-compliance with Use Documents; (b) any misuse, neglect or wrongful act by Client; (c) accidents or shipping related damage; (d) vandalism, explosion, flood or fire, weather or environmental conditions; or (e) any unauthorized repairs, modifications alterations or servicing.

USE OF PRODUCTS: Client shall (a) comply with all instructions, limitations, specifications, use statements or conditions of use made available by DCN including but not limited to product data, product information, safety data sheets, limited use information and labeling (“Use Documents”), and (b) properly test, use, manufacture and market Products or materials produced with Products.  Client acknowledges that Products are not tested for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise explicitly stated in Use Documents. Client is solely responsible for (a) compliance with all applicable regulatory requirements and generally accepted industry standards, and (b) conducting all necessary testing and verification, including for fitness for the intended purpose.  The Products are offered and sold for research purposes only, Client has no express or implied authorization from DCN to use such Products for any other purpose, including, without limitation, in vitro or in vivo diagnostic purposes, in drugs, medical devices or cosmetics for humans or animals or for commercial purposes. Client shall not market, distribute, resell or export Products for any purpose, unless otherwise agreed by DCN in writing.  Client shall comply with all applicable laws, regulations and ordinances, including but not limited to those pertaining to the following: export control, pharmaceutical, cosmetic and food preparations, introduction or production and use of chemical substances (e.g. Toxic Substances Control Act), and bribery and corruption (e.g. Foreign Corrupt Practices Act). Client shall maintain in effect all required licenses, permissions, authorizations, consents, and permits. Client shall comply with all applicable export and import laws in its purchase of Products.

DELIVERY AND RISK OF LOSS: All of our products are sold FOB our facility, Carlsbad, California USA. Products are delivered when we load them onto the commercial carrier at our facility. At this point you become responsible for the risk of loss and damage. If any product is lost or damaged while it is being transported, we will try to help you address the problem with the carrier. Title to products will pass to you upon our delivery of the products to the carrier.

RETURNS:  Client shall not return Products without DCN’s prior written consent. DCN reserves the right to inspect Products at Client’s site and require disposal instead of return. All returns must be in compliance with DCN’s instructions and may be subject to a restocking charge. Certain Products diagnostic reagents; refrigerated or frozen products, custom Products or special orders may not be returned under any circumstances. Any returned Products must be in their original packaging with the original label affixed, and unaltered in form and content.

NO THIRD PARTY BENEFICIAIRIES:  The Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing herein is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature.

SHORTAGES:  DCN reserves the right to  allocate supply, to the extent such allocation is deemed necessary by DCN, among any or all customers (including DCN’s affiliates and distributors) at its sole discretion, without liability for any failure of performance which may result therefrom. 

ASSIGNMENT:  This Agreement may not be assigned by either party without the prior written consent of the other; provided, however, that either party may, without such consent, assign this Agreement and its rights and obligations hereunder in connection with the transfer or sale of all or substantially all of its business or assets related to this Agreement, or in the event of its merger, consolidation, change in control or other similar transaction.

NO WAIVER:  Failure of any party herein to enforce any of the terms or provisions of this Agreement shall not constitute a waiver of any right to enforce that term or provision in the future.

SEVERABILITY:  The parties agree that each of the provisions of this Agreement shall stand on its own, and in the event any portion of this Agreement is deemed invalid, unlawful, or unenforceable, the remainder of the Agreement shall remain in full force and effect, as though the invalid, unlawful, or unenforceable provision or provisions were originally deleted.

FORCE MAJEURE:  Except for monetary payment obligations, neither party shall be liable for any failure to perform its obligations under these Terms and Conditions or the Proposal if it is prevented from doing so by a cause or causes beyond its control, including without limitation, acts of God or public enemy, failure of suppliers to perform, fire, floods, storms, earthquakes, riots, strikes, war, and restraints of government.

MODIFICATIONS:  Any modification to these Terms and Conditions will be effective only if it is in writing signed by the party to be charged.

GOVERNING LAW/DISPUTE RESOLUTION:  This Agreement is made and entered into in Carlsbad, California.  This Agreement shall be governed by, construed, interpreted and enforced under the laws of the State of California, without regard to conflicts of laws principles thereof.  Any disputes or claims arising from or related to this Agreement or the services provided shall be submitted to and resolved exclusively by binding arbitration conducted before and in accordance with American Arbitration Association Commercial Arbitration rules.  One arbitrator appointed under such rules shall conduct the arbitration.  Arbitration shall be in Carlsbad, California, and the laws of California shall apply.  Any decision in arbitration shall be final and binding upon the parties. Judgment may be entered thereon in any court of competent jurisdiction.

ATTORNEYS FEES:  The non-prevailing party in any arbitration or litigation shall pay the legal fees and expenses incurred by the prevailing party in such action.