These terms and conditions of service shall govern all orders for and purchases of services from NanoImaging Services, Inc (“NIS”), unless other terms are specifically designated by NIS to apply to a specific service.
- Project Quote: NIS shall perform microscopy services, data analysis and/or other laboratory services, as requested from time to time and specified in writing in a Project Quote (“Project Quote”), and such services (the “Services”).
- Materials: If and to the extent any Project Quote provides for NIS to receive biological or chemical materials or data for NIS’s use in performing the Services (“Materials”), NIS shall use such Materials only as necessary to perform the Services and will not reverse engineer or create derivatives of the Materials, or transfer or make the Materials available to third parties unless authorized in the relevant Project Quote. If NIS determines that it cannot safely handle certain Materials or lacks sufficient information on which to base a determination that such Materials do not pose a risk to health or safety while in its possession, NIS may refuse to accept such Materials and shall be under no liability for such refusal. NIS may apply a surcharge for any Materials that are hazardous and require special containment or engineering controls, which shall be set forth in the applicable Project Quote. NIS’s maximum liability for Materials shall not exceed the lesser of the replacement cost or One Thousand Dollars ($1,000.00 US).
2. Payment Terms
- Terms: Payment shall be net thirty (30) days from the date of NIS’s invoice. Such fees are net of any taxes, duties or other fees imposed upon NIS by any governmental agency as a direct and sole result of the Services provided by NIS. All payments shall be made in U.S. Dollars and shall be paid fully, without set-off, deduction or counterclaim.
- Late Payments: In the event that any undisputed payment due hereunder is not made when due, the payment shall accrue interest from the date due at the rate of one and one-half percent (1.5%) per month, plus all fees and expenses incurred by NIS, including reasonable attorneys’ fees, to collect such unpaid balances.
3. Regulatory Compliance and Inspection
- Compliance: NIS will conduct all Services in compliance with all applicable Federal and State laws, rules and regulations.
- Regulatory Inspection: If any governmental or regulatory authority conducts or gives notice to NIS of its intent to conduct an inspection of NIS’s facilities or take any other regulatory action with respect to the Services, NIS will promptly give notice thereof. NIS shall determine how it fulfills its obligations to permit inspection by governmental or regulatory agencies.
- Confidential Information: Each party shall maintain in confidence all Confidential Information disclosed by the other party, and shall not use, disclose or grant the use of the Confidential Information except on a need-to-know basis to those directors, officers, employees, consultants, contractors, or permitted assignees ("Representatives"). Each party shall be responsible to the other party for any breaches of the obligations by its Representatives. Each party shall notify the other promptly upon discovery of any unauthorized use or disclosure of the other party’s Confidential Information. “Confidential Information” shall mean all data and information, tangible or intangible, whether in written, graphic, verbal or electronic form, developed, disclosed or made available by one party to the other party or its Representatives, including without limitation, know-how and data, financial, technical and other data, research material, products, services, pricing, formulae, protocols, techniques, experimental work, inventions, discoveries, designs, drawings, concepts, procedures, ideas, diagrams, marketing plans, brochures, processes, test equipment, test data, specifications, operational data, methods and techniques, as well as any notes or modifications thereon prepared by the receiving party; provided, however, that in any event, NIS Property shall be considered Confidential Information of NIS. Information gathered including by observation during visits to a facility shall be considered Confidential Information of the party hosting the visit.
- Permitted Disclosures: Notwithstanding the foregoing, the confidentiality obligations shall not apply to information which the other party can establish by written documentation (i) to have been publicly known prior to disclosure of such information by the disclosing party to the other party, (ii) to have become publicly known, without fault on the part of the other party, subsequent to disclosure of such information by the disclosing party to the other party, (iii) to have been received by the other party at any time from a source, other than the disclosing party, rightfully having possession of and the right to disclose such information, (iv) to have been otherwise known by the other party prior to disclosure of such information by the disclosing party to the other party, or (v) to have been independently developed by employees or agents of the other party without access to or use of such information disclosed by the disclosing party to the other party. The confidentiality obligations shall also not apply to the extent that the receiving party is required to disclose information by applicable law, regulation, court order, or in response to a subpoena, request for production of documents or other lawful court process; provided, however, that the receiving party shall give the disclosing party prompt written notice and sufficient opportunity to object to such disclosure, or to request confidential treatment.
- Return or Destruction of Confidential Information: Upon written direction of the disclosing party, the receiving party will promptly return or destroy all of the disclosing party’s Confidential Information, except that the receiving party may retain (i) one copy of such Confidential Information as reasonably necessary; and (ii) such additional copies created solely and automatically by the receiving party’s computer backup processes; provided that the receiving party shall continue to be subject to the confidentiality obligations hereunder as long as the receiving party retains such copies.
5. Intellectual Property
- NIS Property: NIS shall retain all right, title and interest in and to all inventions, processes, know-how, trade secrets, and other intellectual properties, including but not limited to laboratory analyses, analytical and laboratory methods, processes, approaches and techniques, and technical expertise in the area of laboratory services, procedure manuals, financial information, computer expertise and software generally applicable to its operations and business, whether developed outside of or in connection with rendering the Services, and all improvements thereto made by or on behalf of NIS (collectively “NIS Property”).
- EXCEPT AS EXPRESSLY SET FORTH, NIS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTIBILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
- During the term of services and for a period of one (1) year thereafter, neither party will directly or indirectly solicit the services of any employee or independent contractor of the other party who is then in the employment of or under contract to the other party. A general advertisement or notice of a job listing or opening or similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section, and the hiring of any such employees or independent contractor who freely responds thereto shall not be a breach of this Section.
- Liability Limitations: EXCEPT FOR BREACH OF CONFIDENTIALITY AND LIABILITY FOR THIRD-PARTY CLAIMS, IN NO EVENT SHALL NIS BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH THE SERVICES, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. In the event of a material error caused solely by NIS in the performance of the Services that renders the results of a Project Quote invalid or unusable, NIS shall (a) repeat such Services at NIS’s expense; or (b) refund the fees paid for the relevant Services to the extent such results were invalid or unusable. IN NO EVENT SHALL NIS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO NIS PURSUANT TO THE PROJECT QUOTE GIVING RISE TO THE CLAIM DURING THE THREE MONTH PERIOD PRECEEDING THE CAUSE FOR LIABILITY.
- Applicable Law: The Services shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of law principles thereof.
- Independent Contractors: Each party hereby acknowledges that the parties shall be independent contractors and that the relationship between the parties shall not constitute a partnership, joint venture or agency. No party shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other party, without the prior consent of the other party to do so.
- Waiver: The waiver by a party of any right hereunder, or of any failure to perform or breach by the other party hereunder, shall not be deemed a waiver of any other right hereunder or of any other breach or failure by the other party hereunder whether of a similar nature or otherwise.
- Force Majeure and Related Matters: Any delay or hinderance in the performance of any of the duties or obligations of either party hereto (except the payment of money owed) shall not be considered a breach and the time required for performance shall be extended for a period equal to the period of such delay, provided such delay has been caused by or is the result of any labor disputes, inability to procure materials or services; riots; insurrections; embargoes; war; acts of God; acts of terrorism; acts of the public enemy; inclement weather; fires; explosives; floods or other natural disasters; pandemics, endemics or other reasons or causes beyond the reasonable control of the party seeking to perform.