These terms and conditions of service shall govern all orders for and purchases of services from TrueCourse Biosciences, unless other terms are specifically designated by NIS to apply to a specific service.
1. Services
Project Quote
TrueCourse Sciences 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 TrueCourse Sciences to receive biological or chemical materials or data for use in performing the Services ("Materials"), TrueCourse Sciences 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 TrueCourse Sciences determines that it cannot safely handle certain Materials or lacks sufficient information on which to determine that such Materials do not pose a health or safety risk while in its possession, TrueCourse Sciences may refuse to accept such Materials and shall have no liability for such refusal.
TrueCourse Sciences 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.
TrueCourse Sciences' maximum liability for Materials shall not exceed the lesser of the replacement cost or One Thousand U.S. Dollars ($1,000.00).
2. Payment Terms
Terms
Payment shall be net thirty (30) days from the date of TrueCourse Sciences' invoice. Such fees are net of any taxes, duties, or other fees imposed upon TrueCourse Sciences by any governmental agency as a direct and sole result of the Services provided by TrueCourse Sciences. All payments shall be made in U.S. Dollars and shall be paid in full, without set-off, deduction, or counterclaim.
Late Payments
If any undisputed payment due hereunder is not made when due, the payment shall accrue interest from the due date at a rate of one and one-half percent (1.5%) per month, plus all fees and expenses incurred by TrueCourse Sciences, including reasonable attorneys' fees, to collect such unpaid balances.
3. Regulatory Compliance and Inspection
Compliance
TrueCourse Sciences 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 TrueCourse Sciences of its intent to conduct an inspection of TrueCourse Sciences' facilities or take any other regulatory action with respect to the Services, TrueCourse Sciences will promptly provide notice thereof. TrueCourse Sciences shall determine how it fulfills its obligations to permit inspection by governmental or regulatory agencies.
4. Confidentiality
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 directors, officers, employees, consultants, contractors, or permitted assignees ("Representatives"). Each party shall be responsible to the other party for any breach of these obligations by its Representatives. Each party shall notify the other promptly upon discovering any unauthorized use or disclosure of the other party's Confidential Information.
"Confidential Information" means 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; and any notes or modifications prepared by the receiving party. In all cases, TrueCourse Sciences Property shall be considered Confidential Information of TrueCourse Sciences.
Information gathered, including through 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 that the other party can establish through written documentation:
- Was publicly known before the disclosing party disclosed such information to the other party;
- Became publicly known, without fault on the part of the other party, after the disclosing party disclosed such information to the other party;
- Was received by the other party at any time from a source other than the disclosing party that rightfully possessed and had the right to disclose such information;
- Was otherwise known by the other party before the disclosing party disclosed such information to the other party; or
- Was independently developed by employees or agents of the other party without access to or use of the information disclosed by the disclosing 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 request confidential treatment.
Return or Destruction of Confidential Information
Upon written direction from 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:
- One copy of such Confidential Information as reasonably necessary; and
- Additional copies created solely and automatically by the receiving party's computer backup processes.
The receiving party shall continue to be subject to the confidentiality obligations hereunder for as long as it retains such copies.
5. Intellectual Property
TrueCourse Sciences Property
TrueCourse Sciences shall retain all right, title, and interest in and to all inventions, processes, know-how, trade secrets, and other intellectual property, including but not limited to laboratory analyses; analytical and laboratory methods, processes, approaches, and techniques; 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, as well as all improvements thereto made by or on behalf of TrueCourse Sciences (collectively, "TrueCourse Sciences Property").
6. Warranty
EXCEPT AS EXPRESSLY SET FORTH HEREIN, TRUECOURSE SCIENCES MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
7. Non-Solicit
During the term of the 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 employed by or under contract with the other party.
A general advertisement or notice of a job listing, 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 purposes of this Section. The hiring of any employee or independent contractor who freely responds thereto shall not be a breach of this Section.
8. Miscellaneous
Liability Limitations
EXCEPT FOR BREACH OF CONFIDENTIALITY AND LIABILITY FOR THIRD-PARTY CLAIMS, IN NO EVENT SHALL TRUECOURSE SCIENCES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES; LOST PROFITS OR REVENUES; OR DIMINUTION IN VALUE ARISING OUT OF, RELATING TO, AND/OR IN CONNECTION WITH THE SERVICES, REGARDLESS OF: (A) WHETHER SUCH DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT TRUECOURSE SCIENCES WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (C) THE LEGAL OR EQUITABLE THEORY, WHETHER CONTRACT, TORT, OR OTHERWISE, UPON WHICH THE CLAIM IS BASED.
In the event of a material error caused solely by TrueCourse Sciences in the performance of the Services that renders the results of a Project Quote invalid or unusable, TrueCourse Sciences shall either: (a) repeat such Services at its own expense; or (b) refund the fees paid for the relevant Services to the extent such results were invalid or unusable.
IN NO EVENT SHALL TRUECOURSE SCIENCES' AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO TRUECOURSE SCIENCES PURSUANT TO THE PROJECT QUOTE GIVING RISE TO THE CLAIM DURING THE THREE-MONTH PERIOD PRECEDING 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 its conflict-of-law principles.
Independent Contractors
Each party acknowledges that the parties are independent contractors and that their relationship shall not constitute a partnership, joint venture, or agency. Neither party shall have the authority to make statements, representations, or commitments of any kind, or to take any action binding on the other party, without the other party's prior consent.
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 hindrance in the performance of any duties or obligations of either party hereto, except for 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 that the delay was caused by or resulted from 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; explosions; floods or other natural disasters; pandemics; endemics; or other reasons or causes beyond the reasonable control of the party seeking to perform.