Science Exchange, Inc., Purchase Order Terms and Conditions
Updated: July 19, 2017
1.1 “Affiliate” means any corporation or other business entity controlled by, controlling, or under common control with, a Party, and for this purpose, “control” means direct or indirect beneficial ownership of more than fifty percent (50%) of the voting interest in such corporation or other business entity or having otherwise the power to govern the financial and the operation policies or to appoint the management of an organization.
1.2 “Applicable Laws” shall mean any country, federal, state, provincial, commonwealth, cantonal or local government law, statute, rule, requirement, code, regulation, permit, ordinance, authorization or similar such governmental requirement and interpretation and guidance documents of the same by a governmental authority as applicable to Service Provider.
1.3 “Audit for Cause” shall refer to any audit resulting from the following (I) suspected or actual serious persistent non-compliance with the Order, Service Provider’s policies and procedures, or any other guidance, (ii) suspected or actual failure to perform any of the services set forth in the Order, and (iii) suspected or actual fabrication, falsification, plagiarism, deception, or other practices that materially deviate from those that are commonly accepted within the scientific community for conducting or reporting research, with the exception of honest error.
1.4 "Change Order" shall mean any change to an Order with respect to the Statement of Work, Term, Deliverables, Fees, Service Provider or any other requirement.
1.5 “Confidential Information” shall mean any and all information including but not limited to financial information, know-how, intellectual property, plans, documents, marketing information, business and financial information, formulas, designs, calculations, facilities, reports, models, agreements, Quotes, Statement of Work, Request, Work Product, methods, inventions, discoveries, research concepts, and patents however recorded or preserved that is provided or disclosed via the Platform or by a Party (“Disclosing Party”) to the other (“Receiving Party”) in performance of an Order, in contemplation of an Order or by any other means whether in writing, orally, pictorially or through other tangible materials. Notwithstanding the foregoing, any information disclosed by or on behalf of Requester shall be considered Confidential Information.
1.6 "Data Controller" shall mean the entity or Party which, alone or jointly with others, determines the purposes and means of the processing of Personal Data.
1.7 "Data Processor" shall mean the entity or Party which processes Personal Data on behalf of a Data Controller.
1.8 “Deliverable(s)” shall mean any Work Product, report, material, data, images or as agreed upon in the applicable Order to be delivered to Requester by Service Provider at the conclusion of an Order.
1.9 “Fees” shall mean the total cost for performance of the Services by Service Provider.
1.10 “Materials” shall mean materials, samples, compounds, research models or any other tangible items or its intangible equivalent provided to Service Provider by or on behalf of Requester in order to perform the Services.
1.11 “Order” shall mean a Quote for Services offered by Service Provider and accepted by Requester.
1.12 “Quote” shall mean a description of Services being offered by a Service Provider to a Requester via the Platform.
1.13 “Platform” shall mean Science Exchange Inc., a marketplace for scientific collaboration available at www.scienceexchange.com/products/marketplace, or Science Exchange’s concierge service at www.scienceexchange.com/products/concierge or by any other means as agreed upon by the Parties.
1.14 “Personal Data” shall mean any information relating to an identified or identifiable natural person ("the Data Subject"); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, genetic, mental, economic, cultural or social identity.
1.15 “Privacy Shield Framework” means the EU-US and Swiss-US Privacy Shield self-certification programs operated by the US Department of Commerce.
1.16 “Privacy Shield Principles” means the Privacy Shield Framework Principles (including the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of July 12, 2016 (as may be amended, superseded or replaced).
1.17 “Records” shall mean any and all records, accounts, files, books, receipts, third party invoices, time sheets, written policies and procedures, test results, records, reports, correspondence and memoranda as they pertain to this Agreement (including, but not limited to records related to standard operating procedures, system validation, time expended, tests performed, and materials procured, as applicable).
1.18 “Request” shall mean ordering a Quote for Services via Science Exchange’s Platform.
1.19 “Requester” shall mean the party including its employees, directors and officers ordering Services via Science Exchange’s Platform.
1.20 “Representatives” shall mean any agent, subcontractor, consultant or any other third party fulfilling a Party’s obligations hereunder.
1.21 “Service(s)” shall mean the scientific research services being offered and performed by Service Provider.
1.22 “Service Provider” shall mean the Party including its employees, directors and officers offering and providing Services via the Platform.
1.23 “Statement of Work” shall mean a detailed description of the specific Services to be completed by Service Provider including any pertinent information such as Fees, Deliverables, Term, protocols and payment schedules.
1.24 “Term” shall mean the time from receipt of Quote acceptance and if required, any Materials to completion of an Order including the submission of all required Deliverables.
1.25 “Work Product” shall mean all tangible material, or its intangible equivalent in unwritten or oral form, created directly or indirectly in connection with or arising out of an Order, Requester information (whether disclosed by or on behalf of Requester), or any of Service Provider’s obligations hereunder, including, without limitation, all patent, copyright, trademark, trade secret and other proprietary rights. Work Product may include without limitation all of the following, whether finished or unfinished: drafts, documents, writings, communications, plans, data, estimates, calculations, test results, specimens, schematics, drawings, tracings, studies, specifications, surveys, photographs, software programs, programs, reports, orders, maps, models, agreements and all derivative works thereof, ideas, concepts, discoveries, inventions, patents, know-how, negative know-how and improvements. For the avoidance of doubt, Deliverables shall also be considered Work Product.
2. Scope of Services.
Service Provider shall use its best efforts and assign properly trained, qualified and experienced personnel to perform the Services ethically, promptly and diligently as outlined in the applicable Order and in accordance with this Agreement and all Applicable Laws. Service Provider represents and warrants that (I) it has facilities, computer systems, equipment, data and record management, and physical security measures in place that are compliant with Applicable Laws and industry best practices to perform the Services outlined in the applicable Order, (II) it has procedures in place to ship and receive Materials, (III) it meets any and all safety regulations as required by Applicable Laws to perform the applicable Order including but not limited to EPA, OSHA, GLP, GCP, GCLP, GMP and CLIA regulations, (IV) it has the appropriate licenses and overview in place to perform the applicable Order including but not limited to AAALAC Accreditation, IACUC, IRB and USDA license, (V) it has the right and authority to perform the Services contemplated under this Agreement, including with respect to any third party technology used to perform such Services, and (VI) the performance of its obligations hereunder do not violate any third party rights. Upon request and prior to providing Services that require adherence to Applicable Laws, Service Provider will subject itself to a full audit and inspection by Science Exchange and/or Requester to ensure adherence to relevant Applicable Laws as it pertains to the Services being offered via the Platform.
2.2 Animal Welfare.
To the extent that Services involve animals, animals shall be cared for and used in accordance with all Applicable Laws (e.g., NIH guidelines, ILAR Guide for the Care and Use of Laboratory Animals, Animal Welfare Act, AAALAC, International, etc.). For Services conducted in a foreign country, comparable humane animal research regulations and guidelines shall be followed. Service Provider represents and warrant that its Institutional Animal Care and Use Committee (IACUC) will review and approve the animal research protocol. Service Provider shall be responsible for the care and treatment of any animals involved in the Services, including seeking any necessary veterinary care.
2.3 Prior Agreements.
At Requester’s sole discretion, it may choose to use the Platform to order Services from Service Provider using a prior agreement (the “Prior Agreement”), such Prior Agreement shall govern the Services ordered via the Platform. In such instance, Science Exchange’s sole responsibility is to act as the billing entity and purchase order processor. Notwithstanding the foregoing, it is understood and agreed between the Parties that Section 3.3 of this Agreement shall supersede the applicable section of the Prior Agreement between Requester and Service Provider. Furthermore, unless otherwise explicitly agreed to herein, Science Exchange disclaims all contractual liability as it relates to Services under any such Prior Agreement and any disputes arising out of such Services shall be resolved in accordance with the Prior Agreement between Requester and Service Provider.
2.4 Additional Terms.
It is the intent of the Parties to include in this Agreement any and all applicable terms and conditions for the provision of Services required by Requester. However, in the event a Party requires the other Party or Requester or its/their employees, directors, officers, or Representatives to agree to additional terms beyond those contained herein, such Party shall have the right to add such terms to the respective Quote, provided, that the additional terms are agreed upon by the Parties and/or Requester prior to commencement of the Services. For the avoidance of doubt, such terms shall only be applicable to the respective Order and if such terms conflict with this Agreement, the terms of such Quote and/or Order shall prevail.
3. Service Contract.
Service Provider agrees that it will abide by all terms of this Agreement and has the authority or has received approval from an authorized official of its institution to enter into this Agreement. Service Provider acknowledges and agrees that this contractual relationship is formed when Requester accepts a Quote for the Services being offered. In such an instance, the Service Provider agrees to perform the Order in accordance with the following: (I) this Agreement, (II) the Fees, (III) additional contractual provisions agreed upon by the Parties, and (IV) the Statement of Work accepted by both Requester and Service Provider, to the extent consistent with this Agreement (a “Service Contract”).
3.2 Non-Conforming Services.
In the event Services rendered by Service Provider do not meet the specifications as set forth in the applicable Order, at Requester’s option, Service Provider shall either (I) re-perform the non-conforming Services at its own cost within thirty (30) days after receiving notice from Requester of such non-conforming Services or (II) reimburse Science Exchange any amounts paid and compensate Science Exchange for the cost of Materials used in the performance of the Services. In the event that any animal involved in the Services becomes moribund or seriously ill (except for illness or death due to treatment with the Material), Service Provider shall be required to replace such animal at Service Provider’s expense upon request by Requester or Science Exchange.
With respect to each Service Contract, Service Provider authorizes Science Exchange or Science Exchange’s third party payment processor to collect the Fees for an Order from the Requester on behalf of the Service Provider. Science Exchange guarantees the payment of the applicable Fees to Service Provider’s indicated payment account in accordance with the payment terms set forth in the purchase order issued to Service Provider and following Requester’s indication on the Platform that such Order is complete and the Order was performed in compliance with this Agreement and any additional terms as set forth in the Order. If Science Exchange receives no communication from a Requester within two (2) weeks of the Service Providers indication that the Order is complete, Science Exchange may indicate Order complete and pay the Service Provider. Service Provider’s are solely responsible for all costs incurred in using the Platform, performing Orders and determining, collecting, reporting and paying all applicable state and federal sales, income and other taxes. After the commencement of an Order, should a Change Order be needed, such Change Order shall be documented and agreed to between the Service Provider and Requester (via the Science Exchange Platform). In such instance, Science Exchange on behalf of Requester shall ensure that each Change Order identifies all applicable changes. All payments shall be made in US Dollars at the agreed upon price stated in the Order, as issued by Science Exchange, regardless of any exchange rate.
By entering into an Order, an Affiliate of a Party agrees to be bound by the terms and conditions of this Agreement applicable to Service Provider or Science Exchange, as the case may be, as if such Affiliate were a party hereto, to the extent such terms and conditions relate to performance under the Order. Each of Service Provider and Science Exchange shall be responsible for the performance of its respective Affiliates under the applicable Order.
Service Provider shall not subcontract any portion of an Order without the express written consent of Requester and Science Exchange.
Service Provider represents and warrants that Service Provider and its Representatives have not been and are not debarred, suspended or otherwise excluded from performing an Order. Such exclusions include, but are not limited to the United States Generic Drug Enforcement Act of 1992 (21 U.S.C. § 335(a)), as amended, exclusions from participating in any United States federal or state health care program pursuant to United States 42 U.S.C. § 1320a-7, et seq., as amended, Sections 306(a) or (b) of the U.S. Federal Food, Drug & Cosmetic Act, or in each case pursuant to any other equivalent or successor statutes, rules or regulations. If the Service Provider becomes aware that it or any of its Representatives become debarred or is the subject of an investigation that could cause it to be debarred, it represents and warrants that it shall immediately notify Science Exchange and Requester in writing.
6.1 Standard of Care.
Receiving Party agrees, during the term of the Order and thereafter: (I) to maintain all Confidential Information in strict confidence, using at least the same standard of care that the Receiving Party uses in protecting its own Confidential Information of a similar nature, which in no event shall be less than reasonable care; (II) not to disclose Confidential Information of the Disclosing Party to any third party without first obtaining the Disclosing Party’s prior written consent to such disclosure; (III) in the case of Service Provider, not to use Confidential Information of Requester for any purpose except to perform the Order in accordance with this Agreement; (IV) to maintain reasonable security measures to protect the Disclosing Party’s Confidential Information against loss, theft or destruction; and (V) to return or (at the Disclosing Party’s direction) destroy all Confidential Information of the Disclosing Party (including the Materials or modified versions or derivatives thereof, in the event Service Provider is the returning Party) upon completion or abandonment of an Order or the earlier termination of this Agreement.
Confidential Information will not include any information, to the extent the Receiving Party can evidence through written record: (I) is now or hereafter becomes generally known or available to the public through no act or omission on the part of the Receiving Party; (II) was in Receiving Party’s possession prior to receiving such Materials or information from the Disclosing Party; (III) is rightfully acquired by the Receiving Party from a third party who did not obtain it directly or indirectly from a Party hereto and who has the right to disclose it to the Receiving Party; or (IV) is independently developed by the Receiving Party without access to any Confidential Information of the Disclosing Party. Notwithstanding the foregoing, as between the Parties, the following shall in any event be deemed the Requester’s Confidential Information: (I) the Materials (and any modified version and/or derivative thereof), (II) Work Product, Deliverables or Request (III) all information relating to the identity, characteristics, or other activity of Materials, the uses to which Materials have been or may be put, and all related information obtained by virtue of access to any Materials.
A Party may disclose Confidential Information to its Representatives who have a bona fide need to know such Confidential Information in order to perform the Order in accordance with this Agreement, provided, however, that it has executed appropriate written agreements that are substantially similar to the Confidentiality provisions of this Agreement. Receiving Party will notify the Disclosing Party of any unauthorized transfer, disclosure, loss, or use of any Confidential Information of the Disclosing Party. If the Receiving Party is required or requested to disclose Confidential Information by judicial or administrative process, it shall promptly notify the Disclosing Party and allow the Disclosing Party a reasonable time and opportunity to oppose such process and/or seek a protective order. The Receiving Party shall disclose only the minimum Confidential Information required to be disclosed in order to comply, whether or not Disclosing Party obtains a protective order or other similar order. Notwithstanding anything in this Agreement to the contrary, Science Exchange and Requester shall have the right to disclose any Confidential Information to a regulatory agency to the extent required or requested by such agency in connection with any regulatory filing, inspection or otherwise.
6.4 Unauthorized use.
Receiving Party agrees that Disclosing Party may have the right to seek immediate equitable relief to enjoin any unauthorized use or disclosure of its Confidential Information, in addition to any other rights and remedies that it may have at law or otherwise. The Receiving Party understands and agrees that any unauthorized use or disclosure of the Disclosing Party’s Confidential Information shall constitute a breach of this Agreement. Such unauthorized use or disclosure will cause the Disclosing Party irreparable harm leaving it without sufficient legal remedy and in addition to all other remedies, shall entitle the Disclosing Party to seek injunctive relief.
6.5 Proprietary rights.
Receiving Party acknowledges and agrees that Disclosing Party retains all proprietary rights to the Confidential Information. Nothing in this Agreement shall be construed to grant any rights, express or implied, by license or otherwise, in or to any Confidential Information of Disclosing Party, or any intellectual property or proprietary rights of Disclosing Party, except as specified in this Agreement.
7. Intellectual Property.
7.1 Work Product.
Without limiting any other remedies available in law or equity, Service Provider agrees that anything resulting from an Order, including without limitation any and all intellectual property is Work Product. Service Provider acknowledges and agrees that all right, title and interest in and to any Work Product shall be the sole property of Requester whether the Services to be performed are completed or not. Service Provider hereby assigns to Requester all of Service Provider's right, title and interest in the Work Product. Service Provider shall ensure that, at no cost to Requester, all of Service Provider’s Representatives that contribute to any Work Product have agreed in advance in writing that all right, title and interest in such contributions is assigned and will be assigned to Requester or Service Provider, and that they waive any droit moral or similar rights to object to modifications, adjustments or additions to their contributions. If any agreements with any of Service Provider’s Representatives provide such rights in and to Work Product to Service Provider rather than to Requester, Service Provider shall acquire all such rights in such Representatives’ contributions by operation of this provision. All Work Product and any reproductions thereof shall be surrendered to Requester by Service Provider upon completion of the related Order, or termination of an Order, whichever occurs first. Work Product may be used by Requester without restriction and may not be used by Service Provider or its Representatives, if any, without Requester’s prior written consent.
Requester will have the sole right to determine the treatment of any Work Product, including with respect to intellectual property or proprietary rights therein, to file and execute patent applications, to use and disclose them, or to take any other action that Requester deems appropriate. Service Provider agrees to cooperate with and assist Requester during and after the term of this Agreement to apply for, and to execute any applications, assignments, or other documents reasonably necessary to obtain, protect, evidence, or enforce any intellectual property rights or other statutory protection for Work Product, as Requester deems appropriate.
Service Provider agrees that if, in the course of performing the Services, Service Provider or Service Provider’s Representatives’ incorporates into any Work Product or utilizes in the performance of the Services any pre-existing invention, discovery, original works of authorship, development, improvements, trade secret, concept, or other proprietary information or intellectual property right owned by Service Provider or Service Provider’s Representative(s) or in which Service Provider or Service Provider’s Representative(s) has an interest (“Prior Inventions”), Service Provider hereby (I) grants to Requester a nonexclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) under such Service Provider Prior Inventions to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit the Work Product and Deliverables and (II) ensures that, at no cost to Requester, that Service Provider’s Representatives grant to Requester a nonexclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) under such Service Provider Representative’s Prior Inventions to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit the Work Product and Deliverables. Service Provider will not and shall ensure Service Provider’s Representatives will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary information owned by any third party into any Work Product or Deliverables without Requester’s prior written authorization.
7.4 Science Exchange Platform.
Notwithstanding anything to the contrary, Science Exchange shall solely own all right, title and interest in and to the Platform and any improvements thereof, and all associated intellectual property rights.
8. Material Transfer.
8.1 To the extent that any Order provides that Requester supply Materials, Service Provider acknowledges and shall inform all personnel responsible for performing the Order or handling the Materials that to the extent Requester supplies such Materials: ALL SUCH MATERIALS ARE PROVIDED AS IS WITH NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. REQUESTER DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE, RESULTS OF THE USE OR APPROPRIATENESS OF THE USE OF THE MATERIAL IN ACCORDANCE WITH AN ORDER. REQUESTER DOES NOT WARRANT THAT USE OF ANY MATERIAL WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY RIGHTS OF ANY THIRD PARTY.
8.2 Service Provider represents and warrants that it and its Representatives will (I) use the Materials solely for performance of the corresponding Order as set forth in the applicable Order and not for any other purpose, (II) store, handle, use and maintain the Materials in accordance with the applicable Order, industry best practices and any Applicable Laws, and (III) not use the Materials for any experiments in human subjects, clinical trials, or diagnostic purposes involving human subjects.
8.3 Service Provider and its Representatives shall not (I) provide or describe the Materials to any third parties other than as necessary to perform the Order, (II) attempt to reverse engineer any of the Materials, (III) perform any studies to determine the structure, chemical composition, or other makeup of the Material; or (IV) make any derivatives or progeny of the Materials. The Materials are made available only for laboratory-testing purposes as expressly agreed in this Agreement and shall not be used in animals intended for food use. Upon the sooner to occur of (i) the completion of the applicable Order, (II) the expiration or termination of the applicable Order, or (III) the written request of Requester, Service Provider shall return any unused Materials to Requester or destroy Materials as directed by Requester.
8.4 All right, title, and interest to all Materials and any patent and intellectual property rights therein to all Materials shall remain in Requester. Nothing in this Agreement or any Order grants Service Provider or its Representatives, any rights in or to Materials, except the limited right to use such Materials or Requester Confidential Information as necessary to perform the corresponding Order as set forth in the applicable Order.
Service Provider shall prepare and maintain complete and accurate Records relating to the performance of this Agreement and all costs, liabilities and obligations incurred hereunder, including without limitation those relating to the Fees, until the expiration of five (5) years after completion of the applicable Order or such longer period as required by Applicable Laws. All Records and accounts relating to financial matters must be in a format consistent with Generally Accepted Accounting Practices. Prior to destroying Records relating to any Order, Service Provider shall give at least thirty (30) days’ prior written notice to Requester. If requested by Science Exchange or Requester, Service Provider shall continue to retain Records, provided that Science Exchange agrees to pay the reasonable costs of retention during such additional period, or at Requester's request and to the extent permitted by Applicable Laws, shall forward the Records to Requester. Should Service Provider fail to maintain such Records as required hereunder, Service Provider shall provide its good faith assistance and reimburse Science Exchange for its reasonable costs in recreating such Records. Requester and its representatives, may, upon request, but not more than once every six (6) months, during normal business hours and after reasonable advance notice by Requester, inspect Service Provider’s facilities for quality assurance purposes, and inspect, copy, and audit their Records. In the event of Audit for Cause, Requester and its Representatives (during normal business hours and reasonable prior notice to Service Provider) shall be allowed to inspect or audit Service Provider’s facilities. To the extent applicable, at either Party’s request, an exit meeting shall be held to discuss Requester’s audit findings. Requester shall provide Service Provider with a written report summarizing its findings and consequently, Service Provider shall provide Requester with a response to such findings, which shall include a plan for corrective and preventative actions designed to address reasonable concerns and shortcomings documented in the audit report. To the fullest extent possible, Service Provider shall endeavor to remedy such violations that relate to Service Provider’s compliance with the Order.
During the term of this Agreement, Requester shall be entitled to access Service Provider’s facilities where the Order is performed and Records are being stored. Service Provider shall give Requester access to items such as standard operating procedures, policies and procedures, laboratory notebooks or any other relevant information to evaluate the performance of the Order. Service Provider shall ensure that personnel able to address concerns are available during the visit. Service Provider agrees to notify Science Exchange and Requester within one business day after it receives notice of a pending inspection/audit from a regulatory agency such as the FDA, which relates to an Order or Service Provider’s ability to perform an Order and to provide to Science Exchange and Requester copies of any documents provided to any inspector or auditor. Service Provider will forward to Science Exchange and Requester any written communication received from the regulatory agency as a result of the inspection/audit within one (1) business day of receipt from such agency. Written communication may include any audit report or findings that could have a direct or indirect impact on Service Provider's ability to perform the Order regardless if such written communication is for a specific Order. Service Provider agrees to allow Science Exchange and Requester to assist in responding to any citation issued by a regulatory agency that relates to an Order and to cooperate with all reasonable requests of Science Exchange and Requester with respect to any such citation. Service Provider will give Science Exchange and Requester at least five (5) business days to review any response to a citation before it is forwarded to a regulatory agency. Service Provider shall respond to any citation within two (2) weeks of issuance or within any earlier deadline set by the issuing regulatory authority. In the event the FDA or other regulatory agency requests or requires any action to be taken, Service Provider will consult with Science Exchange and Requester, and will thereafter take, at Service Provider's cost and expense, such reasonable action as necessary to address the issues raised in any citation or inspection.
11. WARRANTY DISCLAIMER.
SCIENCE EXCHANGE MAKES NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY OR RELIABILITY OF ANY INFORMATION PROVIDED BY ANY PARTY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WHETHER ARISING OUT OF STATUTE, IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE, OR AS TO THE ACCURACY OF THE POSTINGS MADE ON THE PLATFORM BY ANY PARTY.
12. LIMITATION OF LIABILITY.
IN NO EVENT SHALL SCIENCE EXCHANGE INC., OR OUR LICENSORS OR THIRD-PARTIES BE LIABLE TO SERVICE PROVIDER OR ITS REPRESENTATIVES FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PLATFORM, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES, OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL REQUESTER OR ITS REPRESENTATIVES BE LIABLE TO SERVICE PROVIDER OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND (WHETHER DIRECT OR INDIRECT) ARISING OUT OF OR RELATED TO EXPERIMENTAL SERVICES OR SERVICE CONTRACTS ENTERED INTO WITH RESPECT TO EXPERIMENTAL SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED IN THIS AGREEMENT, IN NO EVENT WILL SCIENCE EXCHANGE’S, REQUESTER’S, OR THEIR REPRESENTATIVES’ AGGREGATE LIABILITY TO SERVICE PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PLATFORM, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF (A) $1,000,000 OR (B) THE AGGREGATE AMOUNT OF FEES ACTUALLY COLLECTED BY SCIENCE EXCHANGE FROM REQUESTER FOR THE SERVICES TO WHICH THE LIABILITY RELATES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF SUCH LIABILITY.
Unless any Applicable Laws preclude a Service Provider from doing so, Service Provider agrees to indemnify Science Exchange, Requester and their respective Representatives and their Affiliates from and against any third-party suits, actions, legal or administrative proceedings, liens, demands, penalties, claims, liabilities, losses, costs, damages, judgments, penalties, fines, attorneys' fees, court costs and other legal expenses, insurance deductibles and all other expenses arising out of or relating to, directly or indirectly:
i) the negligent, grossly negligent, or intentional act or omission of Service Provider or its Representatives;
ii) Service Provider's or its Representatives failure to perform any of its obligations under this Agreement, an Order or Applicable Laws.
14. Resolution of Disputes between Service Provider and Science Exchange.
If a dispute arises between Service Provider and Science Exchange, Parties agree that any claim or controversy at law or equity that arises out of or relates to this Agreement or an Order will be resolved in accordance with the terms of Section 15 of this Agreement. Before resorting to these alternatives, Service Provider agrees to first contact Science Exchange directly to seek dispute assistance via email at firstname.lastname@example.org.
In the event that a dispute cannot be amicably resolved, each Party agrees to resolve any claim, dispute, or controversy between the Parties (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. The arbitration will be conducted in the County of Santa Clara, CA. Each Party will be responsible for paying any AAA filing, and administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent a Party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property, or unauthorized access to Science Exchange, Inc. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS THE PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. THE PARTIES AGREE THAT, BY ENTERING INTO THIS AGREEMENT, THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Notwithstanding the foregoing, if a Party is entering into this Agreement on behalf of a Government-Affiliated Entity (as defined below), and any Applicable Laws or governing policy restricts a Party from resolving Claims by binding arbitration as set forth above, then the Parties agree to submit their dispute to a mutually acceptable mediator to help them resolve their differences utilizing non-binding mediation. If after non-binding mediation occurs, the dispute is not resolved, the Parties are free to exercise all other legal and equitable right.
16. Term & Termination.
The Term of each Order shall be as stated in the applicable Order. Science Exchange or Requester may terminate an Order at any time (I) by giving at least ten (10) days’ prior written notice to Service Provider, or (II) immediately by giving written notice to Service Provider if termination is for safety or regulatory reasons, including but not limited to a request from the FDA or other regulatory authority or breach (or threatened breach) of the Confidentiality provisions. Upon the receipt of notice of termination of an Order from Science Exchange or Requester, Service Provider shall immediately cease performance of the Order, and comply with all reasonable requests and instructions of Science Exchange and Requester to wind down the Order in an orderly and safe manner while minimizing additional costs to Requester. Science Exchange's sole obligation to Service Provider in the event of termination of an Order by Science Exchange or Requester shall be to pay any monies due and owing for Services properly performed and all reasonable expenses properly incurred in accordance with the applicable Order through the effective date of termination, provided that in the event of termination for default by Service Provider, Science Exchange shall not be obligated to make any further payments to Service Provider until Science Exchange and Requester have been fully compensated for damages suffered as a result of Service Provider’s default. Service Provider shall deliver to Requester within thirty (30) days from the effective date of termination all completed Deliverables, Work Product, work in process, Materials, results, information, data, reports, tables, graphs, programs, or other documents pertaining to the Order, unless otherwise directed by Science Exchange or Requester in writing.
17. Governing Law.
This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws principles. Notwithstanding the foregoing, if a Party is entering this Agreement on behalf of a government-affiliated university, institute, organization, or other government-affiliated entity (a “Government-Affiliated Entity”), and any Applicable Laws or governing policy restricts such Party from entering into agreements governed under the laws of the State of California, then the Parties agree that the laws of the defendant shall govern the interpretation of this Agreement. Any suit, action, or proceeding to enforce the provisions of this Agreement shall be brought in the courts of the defendant and each Party hereby submits and consents to the exclusive personal jurisdiction of, and waives any objection to the laying of venue or claim of inconvenient forum in such court for the purpose of any such suit, action, or proceeding. For avoidance of doubt, nothing in this section 17 will preclude a Party from taking immediate steps to seek urgent equitable relief before an appropriate court.
18. Anti-Bribery Laws.
Service Provider, its Representatives and anyone acting on its/their behalf shall not offer, make or promise any payment, either directly or indirectly, of money or other assets (“Payment”) to an official of any government, political party or international organization, or to any candidate for political office, or to any person acting on behalf of any of the foregoing (collectively, "Officials"), if such Payment is, or may be construed as being paid, for the purpose of influencing decisions or actions with respect to the subject matter of this Agreement or any other aspect of Science Exchange or Requester’s business, or would otherwise constitute a violation of any Applicable Law. Furthermore, Service Provider represents and warrants on behalf of it and its Representatives that it will not commit any act or omission which causes or could cause it, Requester, Science Exchange or any Affiliates to breach, or commit an offence under, any Applicable Laws relating to anti-bribery and/or anti-corruption. Upon request, Service Provider shall provide written documentation to Science Exchange, which shows its conformance to this Section 18. The Parties agree that a breach of this Section 18 shall constitute a breach of this Agreement.
19. Employment Law.
For any performance required under this Agreement (i) between two business entities based in the United States of America and (ii) being performed in the United States of America and/or its territories, Service Provider agrees that this Agreement shall be performed in compliance with the following, if applicable to Service Provider: the employee notice and related obligations found at 29 C.F.R. Part 471, Appendix A to Subpart A, Title VII of the Civil Rights Act of 1964; sections (1) and (3) of Executive Order No. 11625 relating to the promotion of Minority Business Enterprises; 41 CFR §§ 60-1.4(a); Americans with Disabilities Act; Age Discrimination in Employment Act; Fair Labor Standards Act; Family Medical Leave Act; and all corresponding implementing rules and regulations, all of which, including without limitation the contract clauses required and regulations promulgated thereunder, are incorporated herein by reference. Service Provider agrees to support the policy of not discriminating on the basis of age, sex, race, religion, color, national origin, physical or mental disability, or veteran status and abide by all laws, rules, and executive orders governing equal employment opportunity. Service Provider also agrees to make available to Science Exchange, upon reasonable request, proof of its efforts to comply with this Section.
No amendment or modification of this Agreement or any Order will be effective unless it is in writing and approved by Science Exchange. Notwithstanding the foregoing, Science Exchange shall have the right to update this Agreement as it sees fit. To the extent possible Science Exchange will provide notice to Service Provider of the changes to this Agreement; notwithstanding the foregoing, Service Provider warrants that it will review the terms and conditions on each Order to ensure compliance.
21. Use of Name.
The Parties shall not use the name of any Party without express written consent from such Party. The Parties shall not use the name of Requester or its Affiliates without the express written consent from Requester.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by a Party without prior written consent of the respective Party, except that Requester may assign its rights this Agreement, without the other Parties’ consent, to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, or the sale of all or substantially all of Requester’s assets. Any attempted transfer or assignment in violation hereof shall be null and void. The Parties acknowledge and agree that the Requester is hereby an express intended third-party beneficiary to the terms and conditions of this Agreement, with full rights to enforce the terms herein.
23. Independent Contractor.
Service Provider is an independent contractor. Nothing contained in this Agreement creates a partnership, joint venture, employer/employee, principal-and-agent, or any similar relationship between the Service Provider and Science Exchange or Requester. Service Provider has no authority to, and shall not, act as agent for or on behalf of Science Exchange or Requester or represent or bind it in any manner. Service Provider will not be entitled to any of the benefits afforded to Science Exchange or Requester employees.
24. Human Subject Consent.
To the extent that Service Provider is required to provide Requester with cells, tissue, blood or any other bodily fluids collected from human subjects (“Donors”) as well as any derivatives thereof (“Human Substances”), Service Provider represents and warrants that to the extent any consent or authorization is required by Applicable Laws, or by applicable policy or other approval authority, i.e. from the applicable Research Ethics Committee and/or Institutional Review Boards, to be obtained in connection with the collection, maintenance or transfer of the Human Substances, such informed consent from Donors or authorization was or will be obtained as required, prior to transfer to Requester, for Requester’s use and/or the further use of such Human Substances in research projects such as the Services hereunder. Service Provider represents and warrants to Requester and Science Exchange that the provision of Human Substances and any Personal Data that is linked or linkable to a Donor, to Requester for research purposes is consistent with the signed informed consent or authorization previously secured or to be secured. Accordingly, Service Provider represents and warrants that each Donor from whom Requester shall receive Human Substances has signed a valid consent form, in compliance with all Applicable Laws. Such consent forms shall be provided to Requester and/or Science Exchange upon request. Furthermore, Service Provider represents and warrants that (a) it has the right to transfer the Human Substances to Requester; (b) there are no third party claims of ownership or other rights to the Human Substances; (c) the Human Substances were and/or will be collected, and have been and/or will be maintained in accordance with all Applicable Laws, including laws relating to the acquisition of informed consent or authorization, and in accordance with all applicable regulations; (d) to the extent that the collection of such Human Substances was or will be funded in whole or in part with funds from a third party (e.g., a government agency, a commercial sponsor), the transfer of the Human Substances to Requester is not inconsistent with the terms of any agreement between the Service Provider and such third party; and (e) the Human Substances will be provided in an anonymized manner and Service Provider will not disclose or otherwise make available to Requester any Personal Data of Donors (including, without limitation, any medical, physical, mental, genetic, biometric, social, mental, health or sexual data), give access to Requester to any code allowing identification of Donors or upload any Personal Data of Donors to the Science Exchange Platform. In the event that Requester provides Human Substances to Service Provider, Service Provider represents and warrants that it will not undertake any actions to determine Personal Data and it will handle, maintain and store Human Substances in accordance with this Agreement and all Applicable Laws.
25. Personal Data.
25.1 Handling of Personal Data.
To the extent that any Personal Data is transferred to, processed or accessed by Service Provider in the course of this Agreement, Service Provider shall process such Personal Data as a Data Processor on behalf of Science Exchange or Requester (as appropriate) as Data Controller, and in accordance with the following:
(a) Service Provider shall process the Personal Data only for the limited and specified purposes set out in this Agreement, or as may otherwise be instructed by Science Exchange or Requester in writing.
(b) Service Provider will implement and maintain appropriate technical and organizational measures to protect the Personal Data it processes against unauthorized or unlawful processing and against accident loss, destruction or damage (a "Security Incident"), including by compliance with section 30 below.
(c) Service Provider shall ensure that any person it authorizes to process the Personal Data (including its Representatives) shall be subject to a strict duty of confidentiality (whether a contractual or statutory duty) and shall not permit any person to process the Personal Data who is not under such duty of confidentiality.
(d) Where Service Provider engages a sub-contractor pursuant to section 4 above to process the Personal Data, Service Provider must impose by binding contract the same data protection obligations upon such sub-contractor as those set out in this Agreement. Service Provider shall remain fully liable for any acts or omissions of the sub-contractor that leads to a breach of any obligations in this section.
(e) Upon becoming aware of any Security Incident affecting the Personal Data, Service Provider will immediately and no less than within five (5) days from the date of the Security Incident, notify Science Exchange in writing. Service Provider shall take all such appropriate steps to remedy or mitigate the effects or damage resulting from the Security Incident and shall provide Science Exchange or Requester with such further information, assistance or cooperation as they may require regarding the Security Incident upon request.
(f) Service Provider will promptly notify Science Exchange and Requester in the event that it receives any enquiry, communication or complaint from a Data Subject, regulator or other person relating to its processing of Personal Data under this Agreement. Service Provider will not respond directly to such enquiry, communication or complaint without Science Exchange or Requester's express prior written consent and shall provide all reasonable and timely assistance in relation to such inquiry, communication or complaint.
(g) In the event of expiry or termination of the Agreement, Service Provider will, at Science Exchange option, delete or return all Personal Data to Science Exchange or Requester (as appropriate), save where Service Provider is required to retain copies under Applicable Laws in which case it will isolate and protect that Personal Data from any further processing except to the extent required by such Applicable Laws.
25.2 Privacy Shield.
Service Provider acknowledges that Science Exchange has certified compliance with the Privacy Shield Framework and consequently, Service Provider warrants that when processing Personal Data from the European Economic Area or Switzerland, it will provide at least the same level of protection as is required by the Privacy Shield Principles. Service Provider shall promptly notify Science Exchange if it makes a determination that it can no longer meet its obligation to provide the same level of protection as is required by the Privacy Shield Principles and in such event, work with Science Exchange to take reasonable and appropriate steps to stop and remediate any processing until such time as the processing meets the level of protection required by the Privacy Shield Principles. Service Provider acknowledges that Science Exchange may disclose the privacy-related provisions of this Agreement to the US Department of Commerce, the Federal Trade Commission or European data protection authority upon their request.
25.3 Personal Data Audits.
Service Provider shall permit Science Exchange and/or Requester to audit Service Provider's compliance with this section upon reasonable notice and during regular business hours.
26. Human Subject Services
In the event the Service(s) to be performed by Service Provider involve human subject interaction, the Service Provider warrants that it will report any adverse events immediately, and in no case less than twenty-four (24) hours. To the extent appropriate, the Parties will execute an amendment detailing the obligations of Service Provider regarding the human subject Service(s).
27. Payments to Covered Recipients.
In the event that the Service Provider is a U.S. teaching hospital or a U.S. physician (“Covered Recipients”) or has a Covered Recipient contribute to or perform any of Service Provider’s obligations hereunder, payments made by or on behalf of Service Provider to each such Covered Recipient or other compensation or consideration received by each such Covered Recipient on account of its contributions to or performance of any of Service Provider's obligations hereunder shall represent fair market value and comply with Applicable Laws, rules and regulations. Additionally, Service Provider shall inform Science Exchange and Requester of any such payments to a Covered Recipient in order to comply with Applicable Laws such as the Physician Payments Act.
Service Provider, on behalf of itself and its Representatives, represents and warrants that they (i) have not and will not offer or give to Requester or Science Exchange gifts, entertainment, payments, loans, or other gratuities in order to or that may influence the award of a contract or obtain favorable treatment under this Agreement with Science Exchange or Requester and (ii) have not and will not use federal funds to influence or attempt to influence any employee of the United States Federal government or a member of Congress in connection with this Agreement.
29. Export Control.
To comply with U.S. export control regulations, Requester may be required to obtain an export license prior to releasing certain technologies to non-US citizens depending on the person’s home country and resident status. Service Provider and its Representatives represents and warrants that it currently does not intend to use any person to perform Services under an Order who is a citizen of or has permanent residency in any country listed in Country Group E:1 (15 C.F.R. Part 740, Supplement No. 1) (and any amendments thereto or successor lists).
30. Information Technology Security.
30.1 Information Security.
Service Provider represents and warrants that it has an information security program that is based on industry standards applicable to its obligations hereunder such as (i) International Organization for Standardization ("ISO") / International Electrotechnical Commission ("IEC") ISO/IEC 2700X, (ii) American Institute of Certified Public Accountants (“AICPA”) Trust Services Principles, Criteria and Illustrations, (iii) Information Security Forum ("ISF") Standards of Good Practice ("SoGP") for Information Security, (iv) National Institute of Standards and Technology ("NIST") Special Publication 800-53 - Security and Privacy Controls for Federal Information Systems and Organizations, or (v) Information Systems Audit and Control Association ("ISACA") Control Objectives for Information and related Technology (COBIT). Science Exchange shall have the right to perform an audit of Service Provider’s IT security on an as needed basis.
30.2 Data Security.
Service Provider shall encrypt all information it transmits between Science Exchange and Requester and their Representatives. Encryption will utilize industry standard algorithms with a minimal key length of 128 bit.
30.3 Access Control.
Service Provider shall maintain controls to, prohibit third parties (other than its Service Providers or Representatives, who, pursuant to the terms of the Agreement, are permitted access) from accessing Requester Confidential Information. Science Exchange shall use authentication and authorization technologies for service, user and administrator level accounts in accordance with AICPA. Service Provider shall ensure procedures exist for prompt modification or termination of access or rights in response to organizational changes. Service Provider shall ensure procedures exist for provisioning accounts with privileged access rights (e.g., system administration privileges). Service Provider shall periodically review the necessity of privileged access accounts.
30.4 Physical Security.
Service Provider shall ensure that it has adequate processes in place to protect its devices and terminals used to support the Services hereunder from fire, theft, acts of god, or other damages whether it be by accident or deliberate means.
30.5 Risk Assessment.
Upon written request by Science Exchange, Service Provider shall, no more than once per calendar year, subject itself to a risk assessment in accordance with Science Exchange guidelines and/or Applicable Laws. The risk assessment shall be provided to Service provider by Science Exchange and shall be returned within forty-five (45) days after receipt.
30.6 Disaster Recovery and Business Continuity Plan.
During the Term of this Agreement, Requester will maintain and adequately support a disaster recovery and business continuity program ("Disaster Recovery and Business Continuity Program") that ensures the continuous operation and, in the event of an interruption, the recovery of all material business functions needed to meet Service Provider’s obligations under this Agreement. The Disaster Recovery and Business Continuity Program will include at a minimum a detailed disaster recovery plan, which describes the management methodology, management team, emergency contact persons, and specific plans for potential risks that may disrupt Service Provider’s operations. The plan shall meet and be consistent with generally accepted industry standards. Upon written request, Service Provider will provide a copy and overview of the plan to Science Exchange.
Service Provider shall maintain adequate levels and types of insurance coverage appropriate to its business and profession to cover its indemnity obligations hereunder, as required by Applicable Laws, and consistent with the its performance hereunder with such coverage levels and types to include at a minimum and without limitation insurance required by Applicable Laws with respect to Service Provider’s status as an employer, workers’ compensation, comprehensive general liability, employer’s liability, and automobile liability. Service Provider’s insurance coverage must be primary coverage. All insurance coverage must be in full force and effect at all times during performance of Service Provider’s obligations hereunder. At Science Exchange’s request, Service Provider must submit to Science Exchange a certificate of insurance on the ACORD form evidencing the above coverages.
32. Force Majeure.
A Party shall not be deemed in default of this Agreement, nor shall it hold another Party responsible, for any cessation, interruption or delay in the performance of its obligations (excluding payment obligations) due to earthquake, flood, fire, storm, natural disaster, act of God, acts of government, war, terrorism, armed conflict, labor strike, lockout, boycott or other similar events beyond the reasonable control of the Party whose performance has been affected; provided, however, the affected Party shall provide prompt written notice to the other Party of such cessation, interruption or delay and shall use commercially reasonable efforts to avoid or remove such causes of non-performance and continue its performance whenever such causes are removed.
33. No Conflict.
Service Provider represents and warrants to Science Exchange that Service Provider is not, and covenants that it will not, and is responsible for ensuring its employees and Representatives do not become, a party to any agreement or arrangement which would constitute a conflict of interest or that would conflict with the terms of this Agreement, including, but not limited to with respect to ownership of Work Product, or would prevent such Party from carrying out its obligations under this Agreement.
A Party's failure or neglect to enforce any of its rights under this Agreement or applicable Order will not be deemed to be a waiver of that Party's rights to enforce its rights under such Agreement or applicable Order.
35. Entire Agreement / Severability.
This Agreement, together with any amendments and any additional agreements a Party may enter into with a Party in connection with Science Exchange Inc., shall constitute the entire agreement between the Parties. If a court of competent jurisdiction deems any provision or portion of this Agreement to be invalid, the invalidity of such provision shall not affect the validity of the remaining portion of such provision and any other provisions of this Agreement, which shall remain in full force and effect.
The provisions of this Agreement which expressly or by their nature survive expiration or termination of this Agreement, including, but not limited to, Sections 1-3, 5-21, 24-30, and 34-36 will remain in effect after the expiration or termination of this Agreement or applicable Order.