These terms and conditions of service (these “Terms”) shall govern all orders for and purchases of services from TrueCourse Biosciences, Inc. and its Affiliates, including Proteos, Inc. d/b/a TrueCourse Biosciences (collectively, “TrueCourse”), by the customer identified on the Project Quote (“Customer”). Customer’s acceptance of a Project Quote, issuance of a purchase order, or shipment of Materials to TrueCourse constitutes acceptance of these Terms. TrueCourse rejects any additional or conflicting terms in any Customer purchase order, supplier portal or other Customer document. “Affiliate” means any entity that controls, is controlled by, or is under common control with a party.
1. Services
Project Quote
TrueCourse shall perform protein production, structural biology, biophysical characterization, nanoparticle characterization, data analysis and/or other laboratory services as specified in writing in a Project Quote (“Project Quote”) (the “Services”), including the deliverables to be provided to Customer (“Deliverables”). These Terms govern over any conflicting Project Quote term unless the Project Quote expressly refers to this Section.
Materials
TrueCourse shall use any biological or chemical materials or data provided by Customer (“Materials”) only as necessary to perform the Services, and will not reverse engineer, create derivatives of, or transfer the Materials to third parties unless authorized in the Project Quote. TrueCourse may refuse Materials it cannot safely handle or lacks sufficient information to assess, without liability, and may apply a surcharge, set forth in the Project Quote, for hazardous Materials requiring special containment. Customer retains title and risk of loss on all Materials while in TrueCourse’s possession, and TrueCourse’s maximum liability for Materials shall not exceed the lesser of the replacement cost or One Thousand Dollars ($1,000.00 US). Customer is responsible for all import, export and customs requirements and is the importer and exporter of record.
2. Payment Terms
Terms
Payment shall be net thirty (30) days from the date of TrueCourse’s invoice, in U.S. Dollars, without set-off, deduction or counterclaim, in accordance with the payee and remittance instructions on the invoice. Fees are net of any taxes, duties or other governmental fees imposed as a direct result of the Services.
Late Payments
Undisputed payments not made when due shall accrue interest at one and one-half percent (1.5%) per month (or the maximum rate permitted by law, if less), plus TrueCourse’s costs of collection, including reasonable attorneys’ fees. TrueCourse may suspend the Services if any undisputed payment is more than ninety (90) days past due.
3. Regulatory Compliance and Inspection
Compliance
rueCourse will perform the Services in compliance with all laws, rules and regulations applicable to TrueCourse. Customer is solely responsible for compliance with all laws, rules and regulations applicable to Customer, the Materials, Customer’s products and programs, and Customer’s use of the Services
Regulatory Inspection
TrueCourse will notify Customer, where reasonably practicable, of any regulatory inspection or action relating to the Services, and shall determine how it responds to any such inspection.
Regulatory Status; No GxP
The Services and Deliverables are provided on a non-GLP, non-GMP and non-GCP (“non-GxP”), research-use-only basis. TrueCourse makes no representation that the Services, its facilities, systems or personnel, or the Deliverables comply with any GxP, 21 C.F.R. Part 11, ISO or comparable quality or regulatory standard. Customer is solely responsible for determining the suitability of the Deliverables for any regulatory use and shall not represent to anyone that the Services were performed under GxP conditions.
4. Confidentiality
Confidential Information
During the performance of the Services and for five (5) years thereafter (and for trade secrets, for so long as they remain trade secrets), each party shall hold in confidence the other party’s Confidential Information and use it only to perform or receive the Services, disclosing it only to its directors, officers, employees, consultants and contractors with a need to know who are bound by similar obligations (“Representatives”). Each party is responsible for breaches by its Representatives and shall promptly notify the other of any unauthorized use or disclosure. “Confidential Information” means all non-public business, technical, scientific and financial information, in any form, disclosed by one party to the other, including information observed during facility visits; TrueCourse Property is Confidential Information of TrueCourse.
Permitted Disclosures
These obligations do not apply to information that the receiving party can document:
- was known to it before disclosure,
- was rightfully received from a third partywithout restriction, or
- was independently developed without use of the disclosing party’s information.
- was or becomes publicly known through no fault of the receiving party,
A party may disclose Confidential Information as required by law, regulation, court order or legal process, after giving the disclosing party prompt written notice and an opportunity to object or seek confidential treatment.
Return or Destruction
Upon written request, the receiving party will return or destroy the disclosing party’s Confidential Information, except one copy retained to comply with these Terms or applicable law and copies in automatic backups, which remain subject to these obligations. Materials and Raw Data are governed by the Disposition and Raw Data provisions below.
5. Intellectual Property
Deliverables
Upon payment in full of the fees under the applicable Project Quote, the data and results generated by TrueCourse and delivered to Customer as Deliverables shall be the property of Customer, subject to TrueCourse’s rights in TrueCourse Property.
TrueCourse Sciences Property
TrueCourse retains all right, title and interest in and to all inventions, processes, know-how, trade secrets and other intellectual property, including laboratory analyses, analytical and laboratory methods, processes, approaches and techniques, technical expertise in laboratory services, procedure manuals, financial information, computer expertise and software generally applicable to its business, whether developed outside of or in connection with the Services, and all improvements thereto made by or on behalf of TrueCourse (“TrueCourse Property”).
Learnings
TrueCourse may use the general knowledge, skills and know-how acquired in performing the Services to improve its methods, instruments, software and algorithms and to serve other customers, provided it does not disclose Customer’s Confidential Information, use or disclose data, Deliverables or information identifying Customer or its Materials, or practice any Customer patent claim. Resulting improvements are TrueCourse Property.
Disposition
At completion of the Services, Materials will be returned (at Customer’s expense) or disposed of at Customer’s direction; absent direction within thirty (30) days, TrueCourse may dispose of them without liability. TrueCourse may retain one copy of records for compliance purposes.
Raw Data
“Raw Data” means unprocessed instrument output, including raw micrograph, image, movie and frame files, logs and acquisition metadata. TrueCourse will make Raw Data available to Customer on request for ninety (90) days after delivery of the final Deliverables, after which it may be deleted without notice or liability. Raw Data is excluded from any retention, archiving or delivery obligation in any Customer policy, purchase order or other terms.
6. Warranty
Customer Warranties
Customer represents and warrants that (a) it has the right to provide the Materials to TrueCourse for the Services without infringing any third party privacy or intellectual property rights, and (b) Customer’s use of the Services and Deliverables will not infringe the intellectual property rights of any third party.
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, TRUECOURSE 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. Customer acknowledges that contract research services are inherently experimental and are not guaranteed to produce a desired or expected outcome.
7. INDEMNITY
By Customer
Customer shall defend, indemnify and hold harmless TrueCourse and its personnel from all losses, damages, liabilities and expenses, including reasonable attorneys’ fees, arising from third-party claims to the extent arising from (a) TrueCourse’s handling of the Materials in accordance with these Terms, (b) the development, manufacture, use or sale of any Customer product or service, including use of the Deliverables, or (c) Customer’s breach of these Terms, gross negligence or willful misconduct.
By TrueCourse
TrueCourse shall defend, indemnify and hold harmless Customer and its personnel from all losses, damages, liabilities and expenses, including reasonable attorneys’ fees, arising from third-party claims to the extent arising from TrueCourse’s gross negligence, willful misconduct or breach of these Terms, except to the extent covered by Customer’s obligations above.
Procedure
The indemnified party shall promptly notify the indemnifying party, allow it to control the defense and settlement (no settlement admitting the indemnified party’s fault without its consent), and reasonably cooperate at the indemnifying party’s expense.
8. MISCELLANEOUS
Liability Limitations
EXCEPT FOR BREACH OF CONFIDENTIALITY AND THIRD-PARTY CLAIMS UNDER THE INDEMNITY SECTION, NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR LOST PROFITS OR REVENUES, ARISING OUT OF THE SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF ADVISED OF THEIR POSSIBILITY. If a material error caused solely by TrueCourse renders the results of a Project Quote invalid or unusable, Customer shall notify TrueCourse within thirty (30) days after delivery, and TrueCourse shall, at Customer’s option and as Customer’s sole remedy, (a) repeat such Services at its expense or (b) refund the fees paid for the affected Services. IN NO EVENT SHALL TRUECOURSE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES, IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID TO TRUECOURSE UNDER THE PROJECT QUOTE GIVING RISE TO THE CLAIM DURING THE THREE (3) MONTHS PRECEDING THE CAUSE OF LIABILITY, NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Applicable Law
These Terms are governed by the laws of the State of California, without regard to its conflicts of law principles, and the state and federal courts in San Diego County, California shall have exclusive jurisdiction, except that either party may seek injunctive relief in any court of competent jurisdiction to protect its Confidential Information or intellectual property.
Independent Contractors; Waiver
The parties are independent contractors, and nothing herein creates a partnership, joint venture or agency or authorizes either party to bind the other. A waiver of any right or breach is not a waiver of any other right or breach.
Force Majeure
TrueCourse is not liable for delays or errors caused by Customer’s failure to provide Materials, information or cooperation. Neither party is in breach for any delay (other than in payment) caused by events beyond its reasonable control, including natural disasters, pandemics, war, terrorism, labor disputes, or inability to obtain materials or services, and the time for performance shall be extended accordingly.
Entire Agreement
These Terms, together with the applicable Project Quote, are the entire agreement of the parties regarding the Services and supersede all prior proposals, communications and understandings, oral or written.