Agreement; Binding Effect. Upon delivery by Client of the signature page hereto and upon acceptance by EG, this Agreement shall be the binding obligations of the parties hereto. This Agreement (including any exhibits, schedules and other documents referred to herein) contains the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes any prior understandings, agreements or representations, written or oral, relating to the subject matter hereof. No terms, conditions or provisions of any purchase order, acceptance or other business document Client may use in connection with this Proposal shall have any effect on the rights of EG or otherwise modify this Proposal, regardless of any failure by EG to object to such terms, provisions or conditions.
Client Obligations. In addition to any other obligations described in this Proposal, Client shall be solely responsible for the preparation of any and all samples required to be delivered to EG under this Agreement. Client shall deliver all samples and provide all required information in the formats and according to the terms described by EG in this Agreement or that are provided to Client. It is the sole responsibility of Client to review this Proposal for completeness and accuracy. EG has no obligation to provide services not expressly set forth in this Proposal.
Delivery of Samples; Risk of Loss. Client shall be solely responsible for the delivery of samples required under this Agreement to EG. Without limiting the foregoing, Client shall be responsible for all costs relating to delivery of such samples and for obtaining all permits, licenses and other documentation necessary or advisable for the delivery of the samples to EG. Risk of loss for samples shall at all times remain with Client, and Client agrees to maintain adequate insurance to cover any loss thereof, to keep in its possession duplicate samples and/or to take other reasonable steps to minimize potential loss. Further, Client acknowledges and agrees that Client’s samples may be destroyed in the process of conducting the assays and that samples will not be returned. Client, for itself, its representatives, successors and assigns, hereby releases EG, its shareholders, directors, employees and representatives from any claim arising from the loss or destruction of EG samples.
Financial Terms. Eureka Genomics will invoice for all Services provided under this Agreement, which may increase or decrease the total estimated prices as outlined in this proposal. Client will be invoiced monthly as work is completed. Invoice terms are net 30 days or 2% less 10. A 50% upfront payment is required for all non-U.S. Clients. Additional services required to complete this project will incur additional charges. Custom work, library construction/QC, sequencing and/or bioinformatics may be billed separately.
Term; Termination. This Agreement shall be effective as of the date on which confirms in writing that it has accepted Client’s signature page and shall terminate one hundred eighty (180) days after the delivery of the Deliverables, unless terminated earlier as provided herein.
Early Termination. EG shall have the right to terminate this Agreement immediately without liability to Client upon written notice if, after reviewing the samples and SNP data provided by Client, EG determines in good faith that the assay described in this Proposal will be ineffective or difficult to administer. If EG terminates this Agreement pursuant to this Section 6, EG shall promptly notify Client in writing and shall refund any prepaid fees.
Termination for Breach. Either party may terminate the Agreement for a material breach by the other party that, if curable, remains uncured thirty (30) days after delivery of written notice of such breach. The following provisions will survive termination: Sections 8 through 24.
Ownership. Client acknowledges that EG has developed and possesses certain proprietary technology, inventions, processes, know-how, trade secrets, improvements and other intellectual property and assets relating to the testing and analysis of SNPs and other genetic materials (“EG Property”). All EG Property and improvements thereto are the sole and exclusive property of EG, and Client shall have no right, title or interest therein. Nothing in this Agreement shall be understood to grant to Client any right or license to use EG Property. Notwithstanding anything else in this Agreement, Client acknowledges and agrees that EG may use the results of assays conducted as part of the Services to develop and improve EG’s testing technology and process and that any and all improvements to the EG Property arising out of or based in whole or in part on the Services provided by EG to Client shall be the sole and exclusive property of EG.
Confidentiality. “Confidential Information” means information or materials disclosed or otherwise provided by a party to this Agreement to the other party where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information is, by its nature, confidential. EG’s Confidential Information includes the EG Property and the pricing and other terms and conditions of this Agreement. Client’s Confidential Information includes the organized database of SNPs provided by Client for use in interrogating samples, but only if Client has taken all necessary steps to treat such information as a trade secret under applicable law. Confidential Information does not include any information which: (a) is or becomes publicly known other than through a breach of the Agreement; (b) is known to the recipient prior to disclosure; (c) is after the date hereof lawfully obtained by the recipient from a third party that is not under any obligation of confidentiality to the discloser; or (d) is independently developed by the recipient by personnel who did not have access to the corresponding Confidential Information. The parties acknowledge that disaggregated SNP data and/or disorganized groupings of SNP data are not Confidential Information of either party. Client acknowledges that EG may conduct assays for and provide services to other clients that have developed databases of SNPs that are substantially similar to the SNPs database provided by Client, and Client agrees that EG’s provision of such services shall not be a breach of this Section 9. Subject to the foregoing, EG and Client may each use Confidential Information of the other party only to perform its obligations or exercise its rights under this Agreement. EG and Client may only disclose the other party’s Confidential Information to those of its employees and agents who have a need to know and who are bound by obligations of confidentiality similar to these. EG and Client may not use or disclose Confidential Information of the other party for any other purpose without the other party’s prior written permission, except as required by law, including any court or governmental order. EG and Client shall each take commercially reasonable precautions to safeguard the confidentiality of all Confidential Information of the other, but in no event no less than reasonable care. EG and Client will each be responsible for any breaches of this Section 9 by its respective employees, contractors and agents.
Representations and Warranties of Client. Client represents and warrants to EG that: (a) Client is validly existing and in good standing in the jurisdiction of its organization, (b) the execution and delivery of this Agreement has been duly authorized by Client and constitutes the binding obligation of Client, (c) Client holds all rights necessary to deliver the samples and other materials provided under this Agreement, (d) EG’s use of the materials provided by Client in accordance with the terms and conditions of this Agreement shall not infringe upon or constitute misappropriation of any intellectual property right of any third party, and (e) the delivery of all samples and other materials under this Agreement complies with all applicable laws.
Representations and Warranties of EG. EG represents and warrants to Client that: (a) EG is validly existing and in good standing in the state of California, (b) the execution and delivery of this Agreement has been duly authorized by EG and constitutes the binding obligation of EG and (c) the Services will be provided in a professional and workmanlike manner. EG makes no warranty that the Services or any Deliverables will be complete or error-free or that the Services or Deliverables will meet Client’s needs. EG’s sole obligation and Client’s sole and exclusive remedy for breach of the foregoing warranty is re-performance of the Services.
Indemnification. Client shall, at its own expense, indemnify, defend, and hold harmless EG, its affiliates, and their respective officers, directors, shareholders, employees and representatives, from and against any claim, demand, cause of action, loss, liability, expense (including attorneys’ fees and costs), damages or penalties arising from (a) any breach or alleged breach by Client of this Agreement, and (b) any allegation that materials provided by Client (including, without limitation, SNP data) or the use thereof infringe upon or misappropriate the intellectual property rights of a third party.
Disclaimers. CLIENT ACKNOWLEDGES AND AGREES THAT THE SERVICES AND DELIVERABLES ARE OF AN ADVISORY AND/OR EXPERIMENTAL NATURE. EG MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES OR DELIVERABLES WILL BE COMPLETE OR ERROR-FREE OR THAT THE SERVICES OR DELIVERABLES WILL MEET CLIENT’S NEEDS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PERFORMED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES WHATSOEVER, AND EG EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.
Limitations of Liability. IN NO EVENT SHALL EG BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR LOST PROFITS OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES ARISING FROM ITS PERFORMANCE OF THIS AGREEMENT OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY BREACH OF A WARRANTY CONTAINED HEREIN OR OF ANY OBLIGATION TO PERFORM SERVICES OR TO PROVIDE DELIVERABLES BY A SPECIFIED TIME. THE TOTAL AGGREGATE LIABILITY OF EG FOR ANY AND ALL CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES RECEIVED BY EG FROM CLIENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE WHEN SUCH CLAIM FIRST ACCRUED. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY OF THE EXCLUSIVE REMEDIES PROVIDED FOR UNDER THIS AGREEMENT.
Choice of Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of California, excluding its conflicts of law principles thereof and excluding the United Nations Convention on Contracts for the International Sale of Goods.
Disputes (U.S.). If Client is a corporation or other legal entity organized under the laws of a U.S. state or is an individual person who is a resident of the U.S., with respect to any disputes arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction of, and venue in, the state courts in San Francisco County in the State of California (or in the event of exclusive federal jurisdiction, the courts of the Northern District of California).
Disputes (International). If Client is a corporation or other legal entity that organized under the laws of a country other than the U.S. or is an individual person who is a resident of a country other than the U.S., any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be finally determined by arbitration administered by JAMS in accordance with the JAMS International Arbitration Rules. The place of arbitration shall be San Francisco, California, USA. The language to be used in the arbitral proceedings shall be English, and the English-language versions of all documents shall be controlling. The number of arbitrators shall be one. Notwithstanding any contrary provisions in the Rules, each party shall bear its own costs and expenses of the arbitration and one-half (1/2) of the fees and costs for the arbitrator unless the arbitrator determines the fees and costs should be borne by one of the parties. The arbitrator may not award or assess punitive damages against either party.
Litigation Rights Reserved. If any dispute arises with respect to the unauthorized use of Confidential Information or of the intellectual property of a party by another party, the aggrieved party may seek any available remedy at law or equity from a court of competent jurisdiction, in addition to its rights set forth, as applicable, in Sections 13 and 14.
No Strict Construction. Neither party shall be deemed to be the drafter of this Agreement, and this Agreement shall not be strictly construed against one party or the other.
Third-Party Benefit. Nothing in this Agreement, express or implied, is intended to confer upon any other person any rights, remedies, obligations or liabilities of any nature whatsoever.
No Waiver. A party’s failure to insist on strict performance of any provision of this Agreement shall not be deemed a waiver of any of its rights or remedies, nor shall it relieve the other party from performing any subsequent obligation strictly in accordance with the terms of this Agreement. No waiver shall be effective unless it is in writing and signed by the party against whom enforcement is sought.
Force Majeure. No party shall be liable to the other for any loss or damage attributable to, and neither party shall deemed to be in default hereunder as a result of, any failure or delay in performance caused by force majeure. For purposes of this Agreement, the term “force majeure” shall include strike, lockout, earthquake, hurricane, flood, fire, or other acts of God or nature, war, rebellion, civil disorders, piracy, laws, regulations, acts of civil or military authorities (including the denial or cancellation of any export or other necessary license), and any other causes beyond the reasonable control of the party whose performance is affected. Both parties shall use all reasonable efforts to minimize the consequences of force majeure.
Relationship of the Parties. This Agreement does not constitute, and is not intended to give rise to, a partnership or joint venture among the parties. Each party will operate under the terms of this Agreement as an independent entity and not as an agent for, or an employee of, the other.
Counterparts. This Agreement may be executed in two or more counterparts, and each such counterpart shall be deemed a single, original instrument. A facsimile signature will be considered an original signature.