3.0.2 “TargetEvalutor® Software” refers to any and all computer software, including without limitation, its source code, provided by Asterand Bioscience under this Agreement that allows for comparison, grouping or analysis of gene profiles. The Client acknowledges that use of the TargetEvaluator® Software may require information derived from, or may enable information to be searched or downloaded from third party independent websites that Asterand Bioscience is authorized to include in TargetEvaluator® Software. The Client acknowledges that these third party websites may require the Client to obtain and pay for access and use licenses; and that securing and paying for such licenses is the Client’s sole responsibility. The Client takes sole responsibility and liability for all risks related to and costs associated with accessing, searching, and downloading information from the third party websites. The Client indemnifies Asterand Bioscience, and its employees, officers, directors, and agents from any loss that Asterand Bioscience suffers as a consequence of the Client’s failure to obtain, secure, pay for and comply with relevant third party licenses. Asterand Bioscience has not reviewed the information on the third party websites and is not responsible for such information nor for the availability or function of any such third party websites.
4.0.1 All Asterand Bioscience obligations set forth in these Terms and Conditions shall be subject to the following: Asterand Bioscience shall not carry out such obligations where (a) the relevant Services would lead to a conflict of interest with Asterand Bioscience’s preexisting contractual or legal obligations; (b) necessary Materials and Data are unavailable; or (c) Asterand Bioscience is prevented from doing so by any reason outside of its reasonable control, including breach of these Terms and Conditions by the Client.
4.0.2 The Client acknowledges that Asterand may have preexisting contractual relationships or ethical approvals that prevent the use of certain Materials and Data by third parties, and therefore Asterand may not be able to transfer the Materials and Data to the Client except for limited viewing or inspection purposes for a limited time, during which Asterand will retain custody and control of the Materials and Data. Asterand shall provide reasonable notice to the Client of any such restrictions.
4.0.3 Asterand Bioscience may cancel any PO at any time by providing no less than thirty (30) days prior written notice to the Client; without penalty, and Asterand Bioscience’s sole obligation shall be to return any advance payment paid by the Client. Asterand Bioscience shall retain the right to suspend performance of any PO or require adequate assurance satisfactory to Asterand Bioscience when, it its sole opinion, reasonable grounds exist for such action. Asterand Bioscience shall not guarantee any favorable or useful result arising from the performance of any Services or provision of Materials and Data.
Prices quoted by Asterand Bioscience are subject to change without notice. Payment terms for all Services and Products shall be net within thirty (30) days of receipt of invoice. Client shall pay all applicable sales tax, shipping, import or export duties, customs fees and freight charges. The Parties agree that all payments made hereunder are for the Services or Products, and are not for the Materials or Data themselves. Interest shall be payable, calculated on a daily basis, on any overdue payments, at the maximum rate allowed by law.
All Products or Materials and Data transferred to the Client will be shipped CIP Shipping Point (as defined by the International Chamber of Commerce Incoterms). All delivery dates are best estimates possible based on current and anticipated conditions. Asterand Bioscience shall not be liable for any loss, damage or claim by the Client arising out of failure to meet an estimated delivery date. Asterand Bioscience shall keep the Client reasonably apprised of the availability and estimated delivery dates of such Products, Materials and Data.
7. INTELLECTUAL PROPERTY
Except as expressly set forth in these Terms and Conditions, each Party shall remain the absolute and unencumbered owner of any intellectual property rights owned by or otherwise in the possession of that Party at the date of this Agreement. As between the Parties, the Client shall own any invention to the extent that it is first reduced to practice by the Client during the course of any development based on the Products, Materials and Data; provided that (i) this Article 7shall not apply to the extent it relates to any method of process used by Asterand in its own business; and (ii) the Client shall not assert or seek to assert against Asterand Bioscience or its other clients any such right to the extent it would preclude Asterand Bioscience providing its Services to third parties. Except as set forth above, all intellectual property rights which arise in the performance of Services automatically vest in Asterand Bioscience. Save as otherwise expressly stated in these Terms and Conditions, no rights, licenses or obligations are granted by or to be implied by these Terms and Conditions. Right and title to the Materials and Data shall pass to the Client upon delivery in accordance with Section 6 Delivery of this Agreement.
The Client shall accept any Products, Materials or Data that comply with the technical specifications set forth in any applicable PO. The Client may reject any Products, Materials or Data that do not conform to the technical specifications. To properly reject any Products, Materials or Data, the Client shall deliver written notice of its intent to reject the Products, Materials or Data within thirty (30) business days of receipt of the applicable Products, Materials or Data, together with a written indication of the basis for such rejection. If such notice is not delivered within the specified period of time, any such Products, Materials or Data shall be deemed accepted by the Client. For any Products, Materials or Data properly rejected hereunder, Client shall be entitled toreturn the Products, Materials or Data, in reasonable good condition, at the Client’s expense, for replacement by Asterand Bioscience.
9.0.1 The Parties shall take all steps reasonably necessary to hold the other Party’s Confidential Information in trust and shall not use such Confidential Information for any purpose other than that expressly stated in these Terms and Conditions; nor shall either Party disclose the Confidential Information belonging to the other Party to any third party without the prior written consent of the disclosing Party. The Client shall not disclose any Confidential Information belonging to Asterand Bioscience relating to XPressWAY™ Profiles, including without limitation, any object code or information regarding genes, tissues, organs, gene expression and donors, without Asterand Bioscience’s prior written consent.
9.0.2 “Confidential Information” shall refer to any information provided to either Party by the other pursuant or relating to these Terms and Conditions, other than any information which (i) has been published or comes into the public domain other than by breach of this Agreement by the recipient; (ii) is known to the recipient prior to the date of disclosure as evidenced by written records; (iii) is disclosed to the recipient by a third party having the legal right to make such disclosure; (iv) is developed by Asterand Bioscience for a third party, independently of these Terms and Conditions; or (v) is required to be disclosed by any applicable law or any competent authority to which a Party is subject, provided the recipient gives the disclosing Party a reasonable opportunity to oppose, limit or seek confidential treatment with regard to such required disclosure.
10. NO WARRANTIES
Materials and Data delivered pursuant to these Terms and Conditions may be experimental in nature and have hazardous or unknown properties. Asterand Bioscience expressly recommends that all individuals who handle the Materials on the Client’s behalf adhere to Universal Precautions for the Prevention of Transmission of HIV and other Bloodborne Pathogens (www.cdc.gov/ncidod
). All Products, Materials and Data are provided to the Client “AS IS,” and without any representations, guarantees or warranties of any kind, whether express, implied or statutory, including without limitation any and all warranties of fitness for a particular purpose, merchantability or non-infringement. Asterand Bioscience may encrypt all or part of XPressWAY™ Profiles or TargetEvaluator® Software; and provide the Client with a decryption key. Asterand Bioscience makes no warranty that access to and use of encrypted XPressWAY™ Profiles or TargetEvaluator® Software will be uninterrupted, timely, secure or error free.
11. ASSUMPTION OF RISK
Except to the extent prohibited by law, the Client shall assume all liability for damages or loss that may arise from the Client’s use, storage, transfer, processing or disposal of the Products, Materials or Data. Asterand Bioscience shall not be liable to the Client or any other Party for any loss, claim or demand made by or against the Client or other Party, due to or arising out of the use of the Products, Materials and Data, except to the extent caused by the willful misconduct of Asterand Bioscience.
12. LIMITATION ON LIABILITY
Asterand Bioscience’s maximum liability to the Client in relation to this Agreement for any cause whatsoever shall be limited to direct costs and damages only in an amount not exceeding the sum equivalent to the total amount received by Asterand Bioscience from the Client under this Agreement. The Parties hereby agree that the limitations contained herein are reasonable in light of all the circumstances. All liability that is not expressly assumed by Asterand in this Agreement is hereby excluded. Under no circumstances shall Asterand Bioscience be liable to the Client for any special, exemplary, punitive, incidental or consequential damages regardless of the cause.
The Client, and any individuals designated by the Client may publish the results of work performed with the Products, Materials or Data. The Client shall use reasonable efforts to reference Asterand Bioscience as the provider of the Products, Materials or Data in any scholarly or industry publication arising from the use of the Products, Materials or Data. Notwithstanding, neither Party shall use the name, logo, trademark or service mark of the other Party, or any variation thereof, for any purpose in advertising, press release, publicity or promotional literature without the prior written consent of the Party whose mark is proposed to be utilized. The Client shall ensure that disclosures of XpressWay® Profiles in publications or patent applications shall be no greater than necessary for the purpose of the bona fide scientific publication or patent application and that such XpressWay® Profiles shall be limited in respect of a particular gene such that gene expression results from no more than twenty-five percent (25%) of all the samples across all of the plates for that particular gene are disclosed.
This Agreement, and all PO governed by it, are the final, complete and exclusive agreement of the Parties with respect to the subject matter hereof and supersede and merge all prior discussions or proposals between the Parties. The terms of this Agreement take precedence over any conflicting terms, including without limitation, terms included on an invoice, quote, proposal or receipt.
15. INDEPENDENT CONTRACTORS
The relationship between the Parties is that of independent contractors. Nothing in this Agreement shall be interpreted to create a partnership, joint venture or employment relationship. No Party may act as an agent of the other Party hereunder, except as otherwise provided in this Agreement.
Facsimile or PDF electronic signatures shall be accepted as original signatures. Placement of any orders or the transaction of any business by electronic medium shall be subject to this Agreement. This Agreement may be executed as two or more counterparts, each of which shall be deemed an original Agreement.
Any notice required under this Agreement shall be in writing and shall be delivered by certified mail, return receipt requested; postage prepaid, or guaranteed overnight delivery service to the addresses provided by each Party to the other.
The Client shall not assign this Agreement without the prior written consent of Asterand, which consent shall not be unreasonably withheld.
If any provision of this Agreement shall be void, unlawful or for any reason unenforceable, that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of the remaining provisions of the Agreement.
The Parties agree that any amendment, revision, waiver or alteration to this Agreement shall be in writing and signed by both Parties. No waiver by either Party of any breach of this Agreement shall be a waiver of any preceding or subsequent breach. No waiver by either Party of any right under this Agreement shall be a waiver of any other right. The Parties shall not be required to give advance notice to enforce strict adherence to the terms of this Agreement.
21. INJUNCTIVE RELIEF
A breach of this Agreement may result in irreparable and continuing harm to a Party for which there may be no adequate remedy at law. Each Party is therefore entitled to seek injunctive relief as well as other and further relief as may be appropriate.
Nothing in this Section 22 Arbitration may be interpreted so as to limit or modify Section 21 Injunctive Relief. If a dispute arises under or relating to this Agreement, the Parties shall submit the dispute to binding arbitration in the State of Michigan. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of such arbitration shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses and reasonable attorney fees. Any such arbitration shall be conducted by an arbitrator experienced in scientific research and commercial law and shall include a written record of the arbitration hearing. The Parties reserve the right to object to any Individual who is employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction. These Terms and Conditions shall be interpreted, construed and governed by and in accordance with the laws of the State of Michigan, without reference to the conflict or choice of law provisions thereof.