Terms and Conditions
TERMS AND CONDITIONS FOR APPLIED BIOMICS SERVICES
These Terms and Conditions (this “Agreement”), is entered into by and between Client and Applied Biomics, Inc. (“Company”), with principal offices at 23785 Cabot Blvd., Ste 311-312, Hayward, CA 94545, USA (“Company”), and governs each Order Form or Work Order (each as defined below) entered into hereunder. The parties hereby agree as follows:
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 any additional Services unless an Order Form is executed by Company and Client.
2. ORDERS; FEES .
2.1 As sole consideration for the Services described in Section 1, Client agrees to pay Company the applicable service fees that are regularly published on the Company’s website under the “Price” heading as of the date of Order Form submission, or as stated in the formal Quote agreed upon in the applicable Order Form. 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 or applicable Quote. If Client requires additional services (i.e. experiments, analysis and data, etc) beyond the scope specified for a service item as stated in the Quote, 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 Company shall promptly start processing the order after receiving from Clients the completed Order Form, all related samples and payment information as described in Section 2.4. No change of work order is allowed after submission of the Order Form.
2.4 For Clients eligible to pay by Purchase Orders (PO), Company will invoice Client upon completion of the applicable Services detailed under an Order Form. All invoices shall be sent to Client reference the applicable PO number received from Client. Client shall pay the invoice amount in U.S. dollars, on or before 30 days from the date of each Company invoice. For Clients paying by credit card, payment is due upon the receiving of Order Forms. For Clients outside the U.S. and Canada, or Clients whose account is not set up for accepting PO, payments are due upon receipt of invoice. 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. Company reserves the right to require from Clients full or partial payment in advance, at any time that Company believes in good faith that Client’s financial condition does not justify the terms of payment specified. Client’s payment of an invoice shall constitute acceptance of the quality of the Services provided therein.
Company represents and warrants that all Services shall be completed in a professional, workmanlike manner, in accordance with all applicable laws, rules and regulations, and with the degree of skill and care that is required by current, good and sound professional procedures and practices in the applicable industry.
4. BIOHAZARDOUS MATERIALS.
4.1 Client shall not submit any samples that contain any biohazardous material. If any Client samples contain any biohazardous 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 biohazardous materials. 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 biohazardous materials, in connection with Company’s rendering of Services.
5. CONFIDENTIALITY .
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. The terms of this Agreement are Confidential Information of both Parties.
5.2 Each party further agrees not to use or disclose the other party’s Confidential Information except as required 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. The obligations set forth in this section 5 shall continue for five (5) years from the date of disclosure of such Confidential Information. In the event that the receiving party is required to disclose any Confidential Information of the other party as a result of a court order or regulation, the receiving party will notify the other party and reasonably cooperate with seeking a protective order for such Confidential Information, and any Confidential Information required to be so disclosed shall retain its confidential nature for all other purposes.
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.
5.4 Each disclosing party disclaims all representations and warranties about the completeness or accuracy of Confidential Information provided to the receiving party, which is provided “as-is.” No rights or licenses are granted to either party’s Confidential Information except as expressly set forth herein.
5.5 Upon the disclosing party’s written request, the receiving party will promptly return to the disclosing party or destroy all Confidential of the disclosing party in its possession, provided that the receiving party may retain in confidence hereunder (i) one copy of such Confidential Information solely for the purposes of determining compliance with the terms hereof, and (ii) copies of such Confidential Information as may be incidentally contained in electronic backup media created and held in the ordinary course of business.
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 or provide Client Property to any third party 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 Company will notify Client upon completion of Services under a Work Order and Client will have up to one hundred eighty (180) 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 one hundred eighty (180) days from the completion of the Work Order.
7. TERM; TERMINATION.
The term of this Agreement shall commence immediately and shall continue for a period of five (5) years, until unless earlier terminated by either party for any reason upon fourteen (14) days written notice, provided, however, that termination of this Agreement shall not affect any Order Form then in effect, which Order Form shall remain in effect and subject to the terms hereof until completion or termination of such Order Form. Either party may terminate this Agreement or an Order Form at any time upon thirty (30) days’ written notice for the other party’s material breach of this Agreement or an Order Form if the other party fails to cure such breach within such thirty (30) day period. Company shall cease to perform Services under this Agreement on the date of termination specified in any such termination notice and Client shall be liable to Company for those Services performed prior to 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 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
10.8 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.