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Terms and conditions for provision of services
| 1- Governing provisions. MicroBioChips Sas (“MicroBioChips”) agrees to provide to client certain services identified and agreed upon by the parties (the “services”) expressly conditional on client’s assent to the terms and conditions contained herein. Client agrees that the terms of client’s purchase order or any other document supplied by client to MicroBioChips shall not be of any force or effect, except to the extent MicroBioChips agrees in writing thereto. |
| 2- Standard of performance. MicroBioChips will perform all services using due care in accordance with (a) the statement of work relating to the services, of which these terms and conditions are a part (“the services agreement”) and (b) generally prevailing industry standards. MicroBioChips will make a good faith effort to start and complete all services on time and will notify client if MicroBioChips determines that there are likely to be substantial delays. |
| 3- Changes. Changes to the services agreement must be in writing and signed by authorized representatives of MicroBioChips and client. If changes result in an increase in the cost of the services or affect the projected completion date of the services, the fee and/or completion date shall be adjusted to a degree commensurate with such changes. Cancellation of services in progress will result in a partial charge commensurate with the percentage of work completed at the time of cancellation. |
| 4- Materials and information. Client will provide MicroBioChips with sufficient amounts of client’s information and materials such as cells, compounds, samples, or other substances needed to perform the services (“client materials”), as well as comprehensive data or information concerning the stability, storage and safety requirements of such client material needed by MicroBioChips to perform the services. Upon completion of the services any remaining client materials will be destroyed after 6 months. |
| 5- Data. Except as set forth otherwise in the services agreement, client shall be the exclusive owner of and shall have title to all documentation, information, records, raw data, specimens or other work product supplied by client and/or generated by MicroBioChips as a direct result of the performance of the services (“data”). Upon completion of the services, MicroBioChips will maintain a file of the data for storage. |
| 6- Confidentiality. During performance of the services and for three (3) years thereafter, MicroBioChips will treat data as proprietary and confidential and not disclose the same to any person except its employees, consultants, and subcontractors to whom it is necessary to disclose the data for purposes of providing the services; provided, however, that MicroBioChips shall have the right to publicize statistical results of the services in a manner that does not identify client or the specific nature of the services performed. MicroBioChips may disclose data to its employees, consultants, or subcontractors, provided that such employees, consultants, or subcontractors are subjected to a written agreement that includes confidentiality terms at least as restrictive as those specified herein. Any employee, consultant, or subcontractor who is given access to the data shall be informed by MicroBioChips of these terms and conditions. MicroBioChips shall protect the data by using the same degree of care as MicroBioChips uses to protect its own confidential information, but in any event no less than a reasonable degree of care. Notwithstanding any other provisions herein, MicroBioChips shall have no liability or obligation to client for, nor be in any way restricted in, its disclosure or use of any data wich (a) is already known to MicroBioChips; (b) is or becomes publicly known by any means whatsoever, through no wrongful act of MicroBioChips; (c) is received from a third party without breach of this agreement; (d) is disclosed pursuant to an enforceable order of a court or administrative agency; or (e) is independently developed by or for MicroBioChips. |
| 7- Payments. Terms of sale of the services are net 30 days of the date of invoice. Client pays 30% of the total price when he places the order. The invoice, corresponding to the remaining 70% of the price, shall be sent to client upon completion of the services and delivery of a certificate of analysis. If client defaults in any payment when due, MicroBioChips, at its options and without prejudice to its other lawful remedies, may defer delivery or terminate the services agreement. All payments due hereunder shall be made in euros. |
| 8- Use of Names. Neither party shall use the other party’s name or the names of its employees in any advertising, sales or promotional market material or in any publication without prior written consent of such other party. |
| 9- Inventions. Except as set forth otherwise in the services agreement, client shall be the exclusive owner of, and MicroBioChips hereby assigns to client, all client materials, data, inventions, designs, programs, formulas, know-how and writings supplied by client and/or generated or discovered as a direct result of MicroBioChips performance of the services, whether or not copyrightable or patentable (collectively, the “inventions”). If requested by client, MicroBioChips shall, at client’s expense, do all things reasonably necessary or appropriate to assist client in obtaining patents or copyrights on any inventions. Client shall not by virtue of the services agreement or either party’s performance thereof obtain any intellectual property or other ownership rights in any methods or processes used or developed by or for MicroBioChips in or for the provision of services or any documents, records, raw data, materials (other than client materials), specimens, work product, concepts, information, inventions, improvements, designs, programs, formulas, know-how, or writings related thereto, except those methods and/or processes, if any, provided by client to MicroBioChips and designated as being owned by client in a separate written agreement between the parties. |
| 10- Limited warranty. The services agreement is a contract for services only. MicroBioChips’s sole warranty with respect to the services is that MicroBioChips will perform all services in accordance with the standard of performance set forth in section 2 above. Client shall notify MicroBioChips in writing of any claim for a breach of such warranty by MicroBioChips within one (1) month after delivery by MicroBioChips of the certificate of analysis relating to such services. The sole remedy of client for breach of such warranty shall be to require MicroBioChips to re-perform the services (or such portion thereof as may reasonably berequired to be re-performed), and, in such event MicroBioChips shall diligently pursue the re-performance of the services or portions thereof untill completion. In no event shall MicroBioChips be liable under any legal theory (including but not limited to contract, negligence, strict liability in tort or warranty of any kind) as a result of MicroBioChips failure to perform the services in accordance with this warranty for any indirect, special, incidental, consequential, or exemplary damages, even if MicroBioChips had notice of the possibility of such damages. The warranty set forth in this section is in lieu of any and all other warranties relating to the services, express or implied, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. MicroBioChips liability to client for breach of any terms and conditions of the services agreement (other than any breach of the warranty contained in this section) shall be limited to damages (other than indirect, special, incidental, consequential, or exemplary damages) in an amount not to exceed the fee paid or to be paid by client to MicroBioChips in connection with the services. |
| 11- Indemnification. Except to the extent proximately caused by the gross negligence, recklessness or willfull misconduct of MicroBioChips, client shall indemnify and hold harmless MicroBioChips, its affiliates and their respective officers, directors, employees and agents from and against any and all expenses (including, but not limited to, reasonable attorney’s fee), damages, judgments, and losses incured by any such indemnified party as a result of or in connection with any claim, demand, or cause of action asserted by a third party for physical injury to or death or persons, physical damage property, or infringement of intellectual property arising out of or based upon (a) client’s manufacture, sale, or use of any quantity of the client materials, the data or any product or service based in whole or in part on client’s reliance on the services or any portion thereof provided to client by MicroBioChips, or any derivative thereof, and (b) MicroBioChips use or reliance on client materials for the performance of the services for client. |
| 12- Miscellaneous. Neither MicroBioChips nor client shall be responsible for failure or delay in performance of its obligations related to the services due to causes beyond its reasonable control, including but not limited to, acts of God, governmental actions, fire, labor difficulty, shortages, civil disturbances, transportation problems, interruption of power or communications, failure of suppliers or subcontractors, or natural disasters. The relationship of the parties is that of independent contractors, and nothing herein shall be construed as establishing one party, its affiliates, or any of its or their employees as the agent, legal representative, joint venturer, partner, employee, or servant of the other party or its affiliates. Except as set forth herein, neither party shall have any right, power or authority to assume, create or incur any expense, liability or obligation, express or implied, on behalf of the other party or its affiliates. No waiver by either party of any breach of any provision hereof shall constitute a waiver of any other breach of that or any other provision hereof. In any part, term or provision herein is determined to be invalid or unenforceable, the remainder of the terms and conditions herein shall not be affected, and shall otherwise remain in full force and effect. It is a condition of this services agreement that client will use materials provided by MicroBioChips only for client’s internal research purposes. Such materials including, but not limited to, compounds, biological materials, and nucleic acid molecules (e.g. DNA, RNA, vectors, clones, libraries such as cDNA libraries, cells, antibodies, proteins, etc…) (“samples”). In particular, client has no rights to sell or transfer for consideration samples to any third party, wether or not samples are sold or transferred for use in research. |
