- Services. Streamline shall provide any consulting services (the “Services”) described in the Agreement. Notwithstanding anything to the contrary herein, in performing its duties and obligations hereunder, Streamline will not in any manner engage in or have responsibility for: (a) determining if or when a patient shall be admitted or discharged from care by Lab or its personnel performing professional medical services for or on behalf of the Lab (“Medical Professionals”), assigning or designating Medical Professionals to treat any specific patients, or in any way engaging in any activity that constitutes the practice of medicine, or assuming responsibility for the care of patients, the methods or standards of medical services provided by Lab or its Medical Professionals, or any patient care decisions or patient referrals, (b) recommending, referring or ordering any diagnostic tests, or advocating the efficacy of any test to diagnose any medical condition or disease, (c) making final determinations with respect to equipment and supplies for the Lab, (d) hiring, disciplining or firing any Medical Professionals or other Lab employees, (e) engaging in any marketing, advertising or similar activities for the Lab, or (f) performing any billing or collection services.
- Products – Quantity and Cancellation; Authority, Licenses and Use.
a. Quantity; Cancellation. All orders are subject to acceptance by Streamline. Streamline reserves the right to limit purchase quantities or to refuse orders for any reason. In the event Streamline does not accept the quantity of Products ordered by Lab, Streamline and Lab shall discuss such quantity. If Lab and Streamline cannot resolve the foregoing, Streamline may reject an order. No order may be cancelled or altered by Lab, except on terms and conditions accepted by Streamline in writing.
b. Authority; Licenses; Own Use. Lab has full authority to consummate purchases of Products from Streamline. Products are intended to be used only by experienced,
trained professionals in a facility licensed under the Clinical Laboratory Improvement Amendments of 1988 (CLIA), 42 U.S.C. § 263a. Lab represents and warrants that, at the time of each order and purchase, Lab maintains all licensure and registrations necessary to use the Products under these Terms and Conditions. All purchases under these Terms and Conditions by Lab will be for Lab’s own use, and Lab shall not intentionally or knowingly participate in any Diversion of Products. “Diversion” shall mean: (i) any sale of the Products purchased hereunder outside the United States by Lab; (ii) any sale or transfer of the Products into the market by Lab that are expired or have been withdrawn from the market; (iii) any sale or transfer of the Products by Lab to subsidiaries or affiliates of Lab for resale; or (iv) any sale or transfer of the Products by Lab to any unauthorized third party for any reason. Lab shall not alter, replace, remove, or cover any labeling on the Products.
- Pricing, Fees, and Associated Costs. The prices for Products and fees for Services shall be as reflected in the Agreement. The prices or fees charged by Streamline are based on current operating costs, expenses, taxes and other direct costs or operating expenses incurred by Streamline in connection with the Products or Services provided. For Products, in the event of price increases, Streamline shall provide Lab thirty (30) days prior written notice of such increase and provide a revised/updated Agreement. For Services, Streamline may adjust its fees to cover any increase in its costs or expenses related to the business and the Services; provided, however, that (i) in no event shall Streamline be entitled to increase its fees for its Services more than once per every twelve (12) month period; (ii) any increase shall not exceed 5%; and (iii) Lab shall be provided with written notice of the increase at least thirty (30) days prior to the increase taking effect.
- Payments. For Products, unless otherwise agreed, Streamline shall invoice Lab for Products set forth in the Agreement, and Products will be shipped once payment is received. For Services, standard payments for undisputed Services are due and payable upon receipt of a standard detailed invoice provided by Streamline. Lab shall pay by check drawn on a U.S. bank, transfer, ACH, or credit card. Payments by credit card are subject to applicable surcharges or convenience fees and prior approval as determined by Streamline.
- Failure to Pay. If Lab does not pay an undisputed invoice sent by Streamline within the prescribed periods as outlined in these Terms and Conditions, Streamline will send electronic communication to Lab requesting payment status. If no resolution is made on undisputed past due amounts ten (10) days after electronic notification of undisputed past due amount is sent, and provided that Lab does not have a reasonable, good faith dispute regarding such past due amounts, Streamline has the option to suspend the provision of its Products and/or Services and cease the provision of any or all Products and/or Services until payment is made and the Lab’s account is made current. Interest may be charged for undisputed late payments exceeding thirty (30) days at the rate of 1% per month or the maximum amount permitted by law, whichever is less.
- Products – Shipping, Inspection, and Return.
a. Shipping; Risk of Loss. The prices set forth in the Agreement do not include standard shipping and handling. Title to the Products and risk of loss shall be FOB shipping point.
b. Inspection and Claims. Lab shall inspect the Products and packaging for damage, apparent defect, or shortage immediately upon receipt at the shipping destination designated by Lab and shall provide Streamline written notice of any damage, apparent defect, or shortage within three (3) days. Products will be deemed accepted if Lab does not notify Streamline of such claims within three (3) days. All claims for damage, apparent defect, or shortage not received by Streamline, in writing, within such three (3) day period shall be waived.
c. Return Policy. All returns must be preapproved by Streamline. Streamline will accept returns only in the case of damaged or defective Products.
- Taxes. Prices for Products and fees for Services exclude all sales, value added, use and other taxes and duties imposed with respect to the sale, delivery, or use of any Products or Services provided by Streamline to Lab (collectively, “Taxes”). Unless Lab provides a valid, signed certificate or letter of exemption for each respective jurisdiction of its tax-exempt status, Lab is responsible for payment of all Taxes assessed or collected by any governmental body arising from Streamline’s provision of the Products or Services hereunder, except any taxes assessed on Streamline’s net income. If Streamline is required by law to collect Taxes on the provision of the Products or Services, Streamline will provide Lab with an invoice for such Taxes, and Lab must pay Streamline the amount of the Taxes that are due or provide Streamline with satisfactory evidence of Lab’s exemption from the applicable Taxes.
- Confidential Information.
a. Non-Use of Confidential Information. At all times, Lab and its Representatives (defined below) shall hold in strictest confidence and shall not disclose, use, or publish any of Streamline’s Confidential Information (defined below), except to the extent such disclosure, use or publication is expressly authorized in a prior writing by an officer of Streamline. Lab shall use such Confidential Information only as may be required in direct connection with Streamline’s performing the Services and/or providing the Products for the Lab. Both Parties agree that Confidential Information shall be used solely in connection with provision of the Services and/or Products. Neither Party will disclose the other Party’s Confidential Information to any third party without the other Party’s written consent.
b. Definitions. The term “Confidential Information” shall mean trade secrets, confidential knowledge, data and any other proprietary non-public information that Streamline owns, licenses or has obtained from third parties to whom Streamline owes a duty of confidentiality with respect to such information, including, but not limited to: (i) inventions, trade secrets, ideas, data, programs, works of authorship, know-how, improvements, processes, discoveries, designs, techniques and other sensitive information Streamline receives from its customers or other third parties; (ii) technical information relating to Streamline’s existing and future products, including, where appropriate and without limitation, financial techniques and procedures, financial production, software, firmware, information, patent disclosures, patent applications, development or experimental work, formulae, engineering or test data, product specifications, structures, models, techniques, processes and apparatus relating to the same disclosed by Streamline to Lab or obtained by Lab through observation or examination of information or developments; (iii) confidential marketing information (including without limitation marketing strategies, customer names and requirements and products and services, prices, margins and costs); (iv) confidential future product or business plans; (v) confidential financial information provided to Lab by Streamline; (vi) personnel information (including, without limitation, employee compensation); and (vii) other confidential business information of Streamline or any third party. Notwithstanding the foregoing, information received by Lab shall not be considered Confidential Information if: (x) it has been published or is otherwise readily available to the public by means other than a breach of these Terms or Conditions or the Agreement; (y) it has been rightfully received by Lab from a third party without any confidentiality limitations; or (z) it was known by Lab, as evidenced by its records, prior to its disclosure by Streamline. The term “Representatives” means, with respect to Lab, its affiliates, any successor or assignee, and the officers, directors, employees, financial and other professional advisers, financing sources, co-investors, consultants, controlling persons, agents and representatives (as applicable) of Lab and and/or its affiliates.
c. Non-Solicitation. With respect to Labs to which Streamline furnishes Services, for a period of twelve (12) months after completion of the Services by Streamline, Lab shall not, either alone or in association with others, (i) solicit, or permit any organization directly or indirectly controlled by Lab to solicit, any employee or personnel of Streamline or its affiliates to leave the employ of Streamline or such affiliates, or (ii) solicit for employment, hire or engage as an independent contractor, or permit any organization directly or indirectly controlled by Lab to solicit for employment, hire or engage as an independent contractor, any person who was employed or engaged by Streamline or its affiliates at any time during the Term; provided, that this Section 8 shall not apply to any individual whose employment or engagement with Streamline has been terminated for a period of six (6) months or longer.
d. Irreparable Injury. Each Party acknowledges that any violation of this Section 8, including, without limitation, any use or disclosure of the other Party’s Confidential Information other than as specifically provided for in these Terms and Conditions, will result in irreparable injury and damage to the non-breaching Party not adequately compensable in monetary damages alone. Each Party hereby agrees that, in the event of breach of this Section 8, including, without limitation, the use or disclosure by the receiving Party of the disclosing Party’s Confidential Information in any manner other than as specifically provided for in these Terms and Conditions, the non-breaching Party shall be entitled to preliminary and permanent injunctive relief and other equitable relief as granted by any court of competent jurisdiction.
a. Services Limited Warranty and Limitation of Liabilities. Streamline represents and warrants that it shall perform the Services: (a) in accordance with the terms herein, in the Agreement and in accordance with all applicable laws; (b) using personnel of proficient skills, experiences and qualifications; and (c) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services. OTHER THAN THOSE WARRANTIES PROVIDED FOR HEREIN OR IN ANY ADDENDUM, STREAMLINE MAKES NO WARRANTIES TO LAB WITH RESPECT TO SERVICES. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
b. Products Warranty. Streamline warrants that the Products will be free from material defects. STREAMLINE MAKES NO OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS AND DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. In the event of any breach of any such applicable warranty, Lab’s exclusive remedy (following return of the defective or deficient Product) shall be replacement or refund of the purchase price. Streamline’s liability with respect to the Products shall be limited to the warranty set forth above and, with respect to any other claim, shall be limited to the contract price. Warranties and support for equipment are provided by the original manufacturer.
a. Indemnification by Streamline. Streamline shall indemnify, defend and hold harmless Lab, and its directors, officers, shareholders, employees and agents, against all claims, actions, suits and proceedings (collectively, “Claims”) brought by a third party which arise out of or result from Streamline’s (and/or its employees’ or contractors) grossly negligent actions or inactions or omissions in performing the Services. Notwithstanding the foregoing, Streamline shall not be responsible for any Claim arising out of or resulting from Lab’s gross negligence, intentional misconduct, breach of these Terms and Conditions or failure to comply with applicable law.
b.Indemnification by Lab. Lab agrees to fully indemnify, defend, and hold Streamline harmless from and against any and all damages of any kind (including but not limited to, reasonable attorneys’ fees) which Streamline may incur in connection with any claims relating to the Lab’s use of the Products. Lab shall defend Streamline, and its members, managers, officers, employees and agents, against all Claims brought by a third party which arise out of or result from (a) any inaccurate or incorrect information provided by Lab to Streamline needed for Streamline to properly provide the Services, (b) any grossly negligent actions or inactions in the use of any of the Services provided for hereunder by the Lab, or (c) Lab’s clinical lab operations. Notwithstanding the foregoing, Lab shall not be responsible for any Claim arising out of or resulting from Streamline’s gross negligence, intentional misconduct, breach of these Terms and Conditions or failure to comply with applicable law.
c. Indemnification Process. The indemnification obligations set forth above shall be conditioned upon (a) the Party seeking indemnification (“Indemnitee”) providing prompt written notice of any Claim subject to such obligations (except that any delay or failure of notice shall not relieve the indemnifying Party (“Indemnitor”) of its obligations except to the extent it has been prejudiced by such failure, (b) Indemnitor having sole control over the defense and settlement of any such Claims (except that Indemnitor may not enter into any settlement affecting Indemnitee’s rights without Indemnitee’s prior written consent), and (c) Indemnitee providing Indemnitor (at Indemnitor’s expense) with reasonable cooperation in the defense and settlement of any such Claims.
- Insurance. Lab shall, at its own expense, obtain and maintain general liability insurance in adequate amounts as determined by Lab, but no less than sufficient to fulfill the indemnification obligations set forth above. If Lab receives Services from Streamline: (a) Lab shall also maintain property insurance covering normal hazards to the location(s) in which Streamline provides Services in amounts and with coverages deemed appropriate by Lab and consistent with industry standards, and (b) Streamline shall obtain and maintain, at its own expense, professional liability and general liability insurance, each in the amounts of One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) annual aggregate, covering Streamline and all Streamline employees, and shall provide written proof thereof to Lab upon request.
- Limited Liability. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THESE TERMS AND CONDITIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CLAIM, LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THESE TERMS AND CONDITIONS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO STREAMLINE PURSUANT TO THESE TERMS AND CONDITIONS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO (A) ANY CLAIM OR DAMAGES ARISING AS A RESULT OF ANY BREACH OF SECTION 8 (CONFIDENTIALITY) OR SECTION 13 (COMPLIANCE), (B) A PARTY’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT OR FAILURE TO COMPLY WITH APPLICABLE LAWS, OR (C) A PARTY’S OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION).
a. Compliance with Laws. Streamline and Lab shall each comply with all laws, regulations and requirements applicable to any Products and/or Services provided, including, without limitation, the federal Stark Law, federal and state false claims act(s), federal or state civil monetary penalties laws, federal and state anti-kickback and state self-referral statutes and regulations, and any other similar law that regulates the conduct of the Parties.
b. HIPAA and HITECH Compliance. Streamline acknowledges that in connection with the provision of any Services, Streamline may be acquiring and making use of “Protected Health Information” as defined in 45 C.F.R. § 160.103 (as such provision is currently drafted and subsequently updated, amended or revised), the use and disclosure of which is subject to the requirements of the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated pursuant thereto (collectively, “HIPAA”) and the Health Information Technology for Economic and Clinical Health Act and its implementing omnibus regulations (collectively, “HITECH”). The Parties agree to implement the proper administrative, physical and technical safeguards to safeguard protected health information in compliance with each Parties’ obligations pursuant HIPAA and comply with all applicable provisions. Failure of either Party to comply with this Section 13.b. shall constitute a breach of these Terms and Conditions. To the extent applicable, the Parties shall execute and comply with a form of business associate agreement.
c. Lab represents and warrants that (a) Lab is not excluded, debarred or suspended and is not ineligible to participate in any state or federal health care program; (b) Lab has not arranged or contracted (by employment or otherwise) with any personnel, subcontractors or vendors who Lab knows or should know is excluded from participation in any state or federal health care program; and (c) no final adverse action, as such term is defined under 42 U.S.C. § 1320a-7e(g) (or any successor provision of law or regulation), has occurred or is pending or threatened against Lab or its personnel.
- Force Majeure. Except for the obligation to pay money, neither Lab nor Service Streamline will be liable for any failure or delay in performance caused by pandemic, fires, shortage of materials or transportation, government acts, acts of terrorism, or any other matters beyond the party’s reasonable control, and such failure or delay will not constitute a breach of these Terms and Conditions.
- Governing Law; Jurisdiction; Consent to Service. These Terms and Conditions and the performance under them shall be controlled and governed by the laws of the State of Alabama, without regard to its conflicts of law principles. Lab hereby submits to the jurisdiction of the courts of Alabama for purposes of resolving any dispute between Lab and Streamline. Lab waives its right to a jury trial. Lab may instead elect to resolve any dispute arising under or relating to these Terms and Conditions through binding arbitration in the state of Alabama pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any award in arbitration shall be final and not subject to review or appeal in any court.
- Limitations Period; Service; Attorneys’ Fees. No action of any kind relating to the provision of Products or Services may be brought by either party more than one (1) year after accrual, except for an action for non-payment which may be commenced at any time. Lab consents to service of process by FedEx or other nationally recognized overnight courier. Except as set forth in Section 4 (Payments), Lab and Streamline shall each bear their own attorneys’ fees and costs in connection with disputes under these Terms and Conditions.
- Notice. All notices or other communications that are to be given to Lab under these Terms and Conditions will be sent to the contact information listed in Lab’s Agreement. All notices or other communications to Streamline must be given in writing by overnight courier, registered or certified mail, or email, to the following:
Two Perimeter Park South
Birmingham, AL 35243
Attention: General Counsel
18. Waiver. Any failure by either party to enforce any provision of these Terms and Conditions shall not constitute a waiver of such provision or prejudice the right of either party to enforce such provision at any subsequent time.
19. Severability. If any provision is or becomes void or unenforceable by force or operation of law, the other provisions shall remain valid and enforceable. The parties agree to replace any such invalid provision with a new provision which has the most nearly similar permissible economic effect.
Updated January 23, 2023