TERMS AND CONDITIONS
1. SERVICES. Applied Biomics, Inc. ( the "Company") agrees to provide Client services consisting of proteomic analysis (the "Services") as reasonably requested by Client in an Order Form submitted to Company (referred to as the "Work Order" or "Order Form"). Each Order Form shall be governed by the terms of this Agreement. If there is a conflict between this Agreement and any Order Form, the terms of the Order Form shall govern the provision of the Services involved. Neither party shall have any obligation to provide or pay for such additional Services unless an Order Form is executed by Company and Provider.
2.1 As sole consideration for the Services described in section 1, Client agrees to pay Company the service fees that are regularly published on the Company's website at http://www.appliedbiomics.com/proteomics_service_fees.html. Company may, at its sole discretion, require the Client to pay fifty percent to one hundred percent (50% - 100%) of the service fees prior to beginning work on any Work Order. Work Orders may also be subject to shipping and handling charges.
2.2 The scope of proteomics services to be furnished by Company shall consist of the experiments, data analyses and reports described for each service item that is regularly published on the Company's website at: http://www.appliedbiomics.com/proteomics_service_fees.html. If Client requires additional services (i.e. experiments, analysis and data, etc) beyond the scope specified for a service item, then Company will inform the Client of the cost of such additional services, and will only perform such additional services if Client agrees in writing to pay for the additional costs. Company reserves the right to decline any request to provide such additional services.
2.3 Client shall pay the invoice amount in U.S. dollars, on or before 30 days from the date of each Company invoice. However, payments are due on receipt of invoice for customers outside the U.S. and Canada, or if payment is to be made by credit card. Checks must be drawn from a U.S. bank. Client is responsible for wire fees, and bank fees in the event of a bounced check. Client's payment of an invoice shall constitute acceptance of the quality of the Services provided therein. In addition, Client shall submit (by fax, email, or mail) a Work Order and payment information before Company can start processing a Work Order.
3. WARRANTIES. Company represents and warrants that all Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good and sound professional procedures and practices.
4. BIOHAZARD MATERIALS.
4.1 Client shall not submit any samples that contain any biohazard material. If any Client samples contain any biohazard materials, Client shall disclose its presence in the Order Form, and deactivate them completely using the appropriate procedure. Under no circumstances shall Client submit any samples that contain a Level 4 biohazard material (i.e. can cause severe to fatal disease in humans, and for which vaccines or other treatments are not available), even if such hazard is deactivated.
4.2 Client shall assume liability for any injuries relating to the delivery of any samples that contain biohazard material. In addition, Client shall separately defend, indemnify and hold Company harmless from and against all loss, claim or damage, penalties, costs and expenses caused by its delivery of any samples that contain biohazard material, in connection with Company's rendering of Services.
5.1 "Confidential Information" means any information that is transmitted by one party to the other in connection with the performance of this Agreement that the receiving party should reasonably discern to be confidential in nature. Client's Confidential Information will include, but not be limited to, any research, diagrams, materials, samples, business, financial, or product information, along with any information identified by Client as confidential.
5.2 Each party further agrees not to use or disclose the other party's Confidential Information except in the course of performing hereunder and will not use such Confidential Information for its own benefit or for the benefit of anyone other than the party originally disclosing such information.
5.3 The Confidential Information of a party shall not include data or information which: (i) was in the public domain at the time it was disclosed or falls within the public domain, by no fault of the receiving party, (ii) was known to the receiving party at the time of disclosure, (iii) was disclosed after written approval of the disclosing party, (iv) becomes known to the receiving party from a source other than the disclosing party without breach of this Agreement by the receiving party, or (v) was independently developed by the receiving party without the use of or reference to Confidential Information received from the disclosing party. The receiving party shall have the burden of establishing the applicability of any of the foregoing exceptions.
6. CLIENT PROPERTY; DELIVERABLES.
6.1 Client may furnish Company with Client products, samples, material, research, content and/or trade secrets or Confidential Information of Client for use by Company to enable Company to perform the Services (the "Client Property"). Company shall not use the Client Property for any other purpose without Client's express prior written authorization. All Client Property furnished by Client and any "Deliverables" shall remain the sole and exclusive property of Client. Deliverables shall be defined as any reports or analysis prepared by Company in the furnishing of Services. The Deliverables shall not include any technology owned or licensed by Company.
6.2 Client will have up to 45 days following the completion of a Work Order to request that all Client Property relating to such Work Order be returned to Client. Otherwise, Company shall dispose of all such Client Property, including related biological samples, after 90 days from the completion of the Work Order.
7. TERM; TERMINATION. The term of this Agreement shall commence on the date that this Agreement is signed (the "Effective Date"), and shall continue indefinitely until terminated by either party for any reason upon fourteen (14) days written notice. Company shall cease to perform Services under this Agreement on the date of termination specified in such notice and Client shall be liable to Company only for those Services performed through the date of termination.
8. INDEPENDENT CONTRACTOR. The parties are independent contractors for all purposes. Company acknowledges and agrees that Company and Company's employees or contractors (the "Company Personnel") are not entitled to any employee benefits of Client, including without limitation, insurance, unemployment compensation, disability, liability, or any other type of insurance.
9. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES. IN NO EVENT SHALL COMPANY BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. CLIENT FURTHER AGREES THAT THE LIABILITY LIMIT OF COMPANY SHALL IN NO EVENT BE GREATER THAN THE AGGREGATE DOLLAR AMOUNT WHICH CLIENT PAID DURING THE TERM OF THIS AGREEMENT, INCLUDING ANY REASONABLE ATTORNEYS' FEES AND COURT COSTS.
COMPANY DOES NOT REPRESENT OR WARRANT, EXPRESSLY OR IMPLIEDLY, THAT THEIR SERVICES WILL BE ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS OR RELIABILITY THAT MAY BE OBTAINED FROM THE USE OF THEIR SERVICES OR TECHNOLOGY. CLIENT UNDERSTANDS THAT COMPANY CANNOT GUARANTEE THAT ALL EXPERIMENTS WILL GENERATE THE RESULTS DESIRED BY CLIENT.
10.1 Severability. In the event any provision of this Agreement shall be deemed to be invalid or unenforceable, the enforceability of the remaining provisions shall not be affected or impaired thereby.
10.2 Notices. All notices and other communications shall be in a writing addressed to Company or to an authorized Client representative at the addresses set forth above, and shall be considered given when (i) delivered personally, (ii) sent by confirmed facsimile, (iii) sent by commercial overnight courier with written verification receipt, or (iv) three (3) days after having been sent by first class or certified mail.
10.3 Survival Of Obligations. Sections 3, 4, 5, 6, 8, 9, and 10 shall survive termination of this Agreement.
10.4 Governing Law. This Agreement shall be construed in accordance with the laws of California.
10.5 Entire Agreement; Modification. This Agreement is the final and exclusive statement of the terms of the agreement between the parties and supersedes all other agreements between them. This Agreement may not be modified or amended except in writing, signed by the parties.
10.6 Attorneys' Fees. In any action to enforce this Agreement, the prevailing party shall be entitled to recover all court costs and expenses and reasonable attorneys' fees, in addition to any other relief to which it may be entitled.
10.7 Arbitration. The parties
further agree to submit any claim arising out of, or relating to, this Agreement
in excess of the then current limitation for a small claims matter, to binding
arbitration administered by the American Arbitration Association (''AAA'') pursuant
to the Commercial Rules of the AAA in the County of Alameda, California, with
all expenses being shared equally by the parties. This arbitration clause, however,
will not deprive the parties of any right they may otherwise have to seek such
as provisional injunctive relief from a court of competent jurisdiction. Any
costs incurred in the enforcement of the arbitration award will be paid by the
party against whom enforcement is sought.