1. General. These terms and conditions (the “Terms”) govern Provider’s performance, for the benefit of IntraBio Inc (“Client”), of services (the “Services”) or provision of goods (“Goods”) described in the attached Quotation (the Quotation, together with these Terms executed by Provider and Client, form the “Agreement”). Client may at any time, by written order, make changes within the general scope of this Purchase Order in any one or more of the following: (i) scope, deliverables or specifications; (ii) method of shipment or packing; and (iii) place of delivery. If any such change causes an increase or decrease in the cost of, or the time required for, the performance of this Purchase Order, Provider may request an adjustment in the price or delivery schedule, or both, and the Purchase Order shall be modified in writing accordingly upon agreement by the parties.
2. Compensation. In full consideration of Provider’s performance of the Services or provision of Goods (including any deliverables described in the Quotation; where no deliverables are specified, a final report containing all results is the deliverable), Client will pay to Provider the fees set forth in the Quotation in accordance with the payment schedule in the Quotation (where no payment schedule is specified, all amounts are invoiced upon completion of the Services or delivery of Goods). Client will reimburse expenses of Provider as specified in the Quotation. For all payments due under this Agreement, Provider will issue an invoice to Client referencing the Purchase Order number provided by Client, a description of the completed Services or delivered Goods, and, if applicable, an itemized list of all reimbursable expenses. Provider shall contact Client Accounts Payable at accountspayable@Client.com for further instructions on invoice submission. Payments will be made by Client within 30 days of Client’s receipt of the corresponding invoice. The account and payment currency of this Agreement is the U.S. dollar.
3. Inspection. Client shall have the right to inspect and test the Services and Goods ordered at any time, including during the manufacture construction, or preparation, notwithstanding any prior payment or inspection. Defective Services or Goods not in compliance with Client’s drawings, specifications, quantities or standards may at any time be rejected even though such Services and Goods may have previously been inspected and accepted. Without limiting any rights it may have, Client at its sole option may require Provider, at Provider’s expense to: (i) promptly repeat, replace or accept return of any or all rejected Services and/or Goods or (ii) refund the fees paid for any or all rejected Services and/or Goods. All such rejected Goods will be held for Provider’s prompt instruction and at Provider’s risk. Rejected Goods will be transported for return to Provider or destroyed at Provider’s cost. Nothing contained herein shall relieve in any way Provider from the obligation of testing, inspection, and quality control. Payment for Services or Goods prior to inspection shall not constitute acceptance thereof and is without prejudice to any and all claims Client may have against Provider or any other party.
4. Warranties. Provider warrants that the Services performed or Goods delivered, including the packaging, labeling and sorting thereof, any installation, repair, and maintenance of Goods, and any other performance pursuant to this Purchase Order, will: (i) be free of infringement of property rights of third parties, including without limitation, any patent, trademark, trade name, copyright or right of publicity, or misappropriate any trade secret or violate any license or any other rights; (ii) be free from defects in material and workmanship, be of even kind and quality and run without variation; (iii) be of merchantable quality; (iv) be fit for the intended use of the Client, Client’s customers and any other intended uses of such Services or Goods; (v) be of grade and performance in conformity with all specifications, blueprints, designs, drawings, samples, models, descriptions, instructions, and other items referred to in this Purchase Order and (vi) shall be performed, provided, manufactured, shipped, stored, and otherwise handled in strict compliance with all applicable laws, codes, ordinances, regulations, executive orders, and industry standards. Provider makes all warranties contained in the Uniform Commercial Code. Provider shall maintain, solely at Provider’s cost and expense, all licenses, permits, approvals, and the like necessary to conduct its business and perform its obligations under this Purchase Order.
5. Confidential Information.
5.1 Obligations. With respect to Confidential Information, Provider shall: (a) use such Confidential Information solely for the purposes of performing the Services or providing Goods, (b) hold the Confidential Information in strict confidence, use the same methods and degree of care (at least reasonable care) to prevent disclosure of such Confidential Information as it uses to prevent disclosure of its own confidential information, and protect such Confidential Information against dissemination to unauthorized parties, (c) not disclose any Confidential Information to any third party without Client’s prior written consent, and (d) immediately notify Client upon discovery of any loss or unauthorized disclosure of Confidential Information. Provider shall limit access to Confidential Information to only those persons who are responsible for performing Services and who require such information to perform Services or providing Goods. As used herein, “Confidential Information” means all information and data (whether in oral, written, graphic or electronic form): (i) provided by or on behalf of Client to Provider, (ii) obtained by Provider through observation or examination of such information pursuant to this Agreement, or (iii) generated or obtained as a result of the performance of the Services or provision of Goods, including, without limitation, Work Product (notwithstanding that Provider may first disclose such information and data to Client).
5.2 Exceptions. Provider shall have no obligation of confidentiality and non-use with respect to any portion of Confidential Information which: (a) is now or becomes generally available to the public through no act or omission of Provider or Provider’s representatives; (b) is known by Provider without restriction on use and disclosure prior to Client’s disclosure, as evidenced by Provider’s pre-existing written records; or (c) is obtained by Provider without restriction on use or disclosure from a third party (other than Client’s vendors, consultants, or collaborators) who had the legal right to disclose the information to Provider. For clarity, the information excluded pursuant to part (b) of this Section 5.2 does not apply to Client Confidential Information described in part (iii) of Section 5.1.
5.3 Authorized Disclosure. Notwithstanding the provisions of Section 5.1, Provider may disclose Confidential Information without violating its obligations under this Agreement to the extent the disclosure is required by a valid order of a court or other governmental body of competent jurisdiction or is otherwise required by law or regulation; on the condition that Provider gives reasonable prior written notice to Client of such required disclosure and, at Client’s request and expense, cooperates with Client’s efforts to contest such requirement, obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued or the law or regulation required, or obtain other confidential treatment of such Confidential Information.
5.4 Return or Destruction of Information. Upon the expiration or termination of this Agreement or upon Client’s written request, Provider will promptly return to Client all Confidential Information in tangible form, and all Materials provided by or on behalf of Client in connection with this Agreement. If requested by Client, Provider will delete all Confidential Information stored in any electronic form.
6. Compliance with Laws. Provider will comply with all applicable laws, regulations, and ordinances in the performance of provision of the Goods and Services, including but not limited to all applicable data protection laws and regulations.
7. Ownership. All Work Product shall be Client’s sole and exclusive property. For the purposes of this Agreement, “Work Product” includes, without limitation, any results (including data), conclusions, know-how, materials, inventions, discoveries, improvements, processes, compounds, substances, materials, methods, and deliverables (interim and final), whether or not patentable or copyrightable, and all intellectual property rights relating to the preceding, in each case arising out of or resulting from the Services or which result to any extent from use of Client’s property or Materials. Provider shall promptly disclose to Client all Work Product. Provider hereby assigns, transfers, and conveys to Client all right, title, and interest in and to Work Product. Provider will execute and deliver any and all instruments and documents and take such other acts as may be necessary or desirable to document such transfer or to enable Client to apply for, prosecute, and enforce patents and patent applications, trademark applications and registrations, or copyrights in any jurisdiction with respect to any Work Product, or to obtain any extension, validation, re-issue, continuation, or renewal of any such intellectual property right. Provider irrevocably appoints Client and its duly authorized officers and agents as Provider’s agent and attorney for such purpose, and such appointment is coupled with an interest.
8. Materials. To the extent specified in the Quotation, Client will provide materials necessary for performance of Services (“Materials”). All Materials will remain the sole property of Client, will be used only in furtherance of the Services, will not be delivered to any third party without the prior written consent of Client, and will be used in compliance with all applicable laws, rules and regulations. Provider shall not attempt to analyze in any manner, reverse engineer, deconstruct or in any way determine the structure or composition of any Materials, except as necessary to perform the Services. Materials must be used with prudence and appropriate caution in any experimental work because not all of their characteristics may be known. MATERIALS ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE OR ANY WARRANTY THAT THE USE OF MATERIALS WILL NOT INFRINGE OR VIOLATE ANY PATENT OR OTHER PROPRIETARY RIGHTS OF ANY THIRD PARTY.
9. Indemnity and Insurance. Provider shall indemnify Client, its officers, directors, employees, and agents against all liability, obligations, claims, losses, and/or expenses which may be sustained or claimed against an Indemnitee: (i) arising out of negligent Services or defective Goods hereby ordered; (ii) arising from injury to Provider’s employees while in the course of providing Services or Goods to Client. If the Services or Goods become, or in Provider’s opinion, are likely to become the subject of any third party infringement claim, Provider shall do one of the following at Provider’s option and expense: (i) procure for Client the right to continue using the Services or Goods; (ii) replace or modify the Services or Goods so that they become non-infringing without losing functionality; or (iii) terminate Client’s right to use the Services or Goods, whereupon Provider will refund to Client all amounts paid for such Services or Goods. The indemnity under this Paragraph 8 shall survive delivery and acceptance of Services or Goods and termination or expiration of this Purchase Order.
10. Insurance; Limitation of Liability. Provider shall maintain appropriate commercial insurance during the term of this Agreement. Client’s liability to pay any amount to Provider for any reason shall not exceed the amount Client has agreed to pay Provider for the Services or Goods. CLIENT SHALL NOT BE LIABLE TO PROVIDER FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES OR COMMERCIAL LOSSES ARISING FROM THE PURCHASE OF SERVICES AND/OR GOODS REGARDLESS OF THE CAUSE OF ACTION OR THE FORM OF THE CLAIM FOR DAMAGES, AND EVEN IF CLIENT IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Termination. The term of this Agreement begins upon full execution and expires upon completion of the Services, including the provision of all deliverables. Client may terminate this Agreement upon written notice to Provider. Termination or expiration of this Agreement will not relieve the parties of any obligations accruing prior to termination or expiration. Except as otherwise indicated in the Quotation, any amounts prepaid by Client that are not earned as of termination will be promptly refunded to Client. Sections 3, 5, 6, 7, 8 and 9 will survive termination or expiration.
Subcontracting. Provider shall not subcontract any of its obligations under this Agreement without the prior written consent of Client. If Client consents to the use of a subcontractor, Provider shall ensure that the subcontractor is bound by terms and conditions no less protective of Client than those contained in this Agreement.
12. Notices. Notices under this Agreement must be in writing and delivered by email, courier service or registered or certified mail. A notice is effective when received. Notices will be sent to the address for the party specified on the signature page, or such alternative address as a party may indicate in a notice provided in accordance with this Section.
13. Miscellaneous. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings between the parties (whether written or oral) relating to the subject matter of the Quotation. In the event of any conflict between these Terms and the Quotation, these Terms shall govern. The relationship between Provider and Client is one of independent contractor, and at no time will Provider hold itself out to be Client’s employee or represent itself, either directly or indirectly, as being connected with or interested in Client’s business. None of the terms of this Agreement may be waived except by an express agreement in writing signed by the party against whom enforcement of such waiver is sought. The failure or delay of either party in enforcing any of its rights under this Agreement shall not be deemed a continuing waiver of such right. This Agreement may not be amended except by a writing signed by both parties. Provider may not assign or delegate Provider’s obligations under this Agreement, either in whole or in part, without Client’s prior written consent. If any provision of this Agreement is deemed invalid, illegal, or unenforceable, such provision shall be deemed amended to conform to the applicable laws so as to be valid and enforceable or, if it cannot be so amended without materially altering the intention of the parties, it shall be stricken, and the remainder of this Agreement shall remain in full force. This Agreement shall be governed by and construed in accordance with the laws of the state of New York, and the parties hereby submit to the exclusive jurisdiction of the courts located in New York, New York.
