1. General: Entire Agreement
The custom protocol development services (the “Services”) to be provided by Molecular Devices (the "Provider") to the party purchasing the Services (the "Customer") shall be governed by these terms and conditions. Provider’s offer to sell the Services to Customer is expressly limited to Customer’s acceptance of these terms and conditions. Any of the following constitutes Customer’s unqualified acceptance of these terms and conditions:
- Issuance or assignment of a purchase order for the Services,
- Acceptance of any Service under the purchase order, or
- Payment for any of the Services under the purchase order.
Additional or different terms or conditions proposed by Customer (including any additional or different terms provided in a purchase order) shall be void and of no effect unless specifically accepted in writing by Provider. This Agreement shall be the exclusive agreement between the parties for the Services subject to the terms and conditions herein. Any prior or contemporaneous understandings, agreements, and representations, oral or written, are superseded by these terms and conditions. No modification to these terms and conditions shall be valid unless in writing and signed by Provider.
2. Statement of Work
The Services will be as described in a Statement of Work (“SOW”) signed by both parties which shall specify, among other things, the deliverables (each, a “Deliverable”) and the timeline and acceptance criteria for each Deliverable. Unless otherwise agreed upon in the SOW, all Deliverables shall be provided to the Customer in electronic form.
A. Customer shall have seven (7) days from delivery of Deliverables to Customer to review and accept as complete, or reject as incomplete, each such Deliverable in accordance with the acceptance criteria set forth in the SOW. If Customer does not notify Provider of its acceptance or rejection within such 7 day period, the Deliverables shall be deemed accepted by Customer.
B. If Customer rejects a Deliverable pursuant to Paragraph 3(A), the notice of rejection must itemize each instance in which that Deliverable fails to meet the applicable acceptance criteria ("Failure") in sufficient detail to permit Provider to replicate and diagnose the Failure. Failures caused solely by Provider, its affiliates, employees, agents or subcontractors and the diagnosis and correction of such Failures will be at no additional cost to Customer . Provider shall use commercially reasonable efforts to promptly diagnose and correct all identified Failures and to provide Customer with a modified Deliverable for review and acceptance. Acceptance of the modified Deliverable shall be conducted in accordance with Paragraph 3(A).
4. Limitation of Liability
Except as expressly provided in Paragraph 3 above, Provider makes no warranty of any kind whatsoever, express or implied, as to the Services or any Deliverable including as to fitness for a particular purpose or merchantability. Customer shall be solely responsible for its use and validation of the protocols. IN NO EVENT WILL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SERVICES EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROVIDER’S TOTAL CUMULATIVE LIABILITY, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID DURING THE TWELVE MONTHS PERIOD PRECEDING THE CLAIM. ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT.
5. Price/Payment Terms
A. Services shall be sold and invoiced at the prices listed on the quotation for protocol development services. Prices do not include sales, excise, use or other taxes now in effect or hereafter levied by reason of this transaction. Customer will pay and indemnify and hold Provider harmless from all such taxes.
B. Payment terms are net thirty (30) days from date of invoice. Provider shall invoice Customer for the full amount upon completion of the Service and delivery to customer of all Deliverables set forth in the applicable SOW, unless otherwise indicated on the SOW. Provider reserves the right to require alternative payment terms, including, without limitation, site draft, letter of credit or payment in advance.
C. If payment is not received by the due date, a late charge will be added at the rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per year) or the maximum legal rate, whichever is less, to unpaid invoices from the due date thereof.
D. All payments will be made as follows.
All checks should be sent to:
2680 Collections Center Drive
Chicago, IL 60693
All payments by wire transfer should be submitted to:
Bank of America
San Francisco, CA
Under Swift B of A US65
For Credit of: Molecular Devices
Routing and Transit No.: 121000358
Final Account No.: 1493-6-04706
By Order of: "Sending Company Name"
E. If Customer is delinquent in paying any amount owed to Provider by more than ten (10) days, then without limiting any other rights and remedies available to Provider under the law, in equity, or under the Agreement, Provider may (i) suspend performance of Services, or (ii) by notice to Customer, treat such delinquency as a repudiation by Customer of the portion of the Agreement not then fully performed, whereupon Provider may cancel all further performance of Services and associated deliveries and any amounts unpaid hereunder shall immediately become due and payable. If Provider retains a collection agency and/or attorney to collect overdue amounts, all collection costs, including attorney's fees and expenses, shall be payable by Customer.
If the Services require that samples of Customer’s proprietary compounds and related information (“Samples”) be sent from Customer to Provider, Provider shall treat the Samples and information about the Samples as confidential information of Customer. Provider agrees not to modify or attempt to reverse engineer the Samples except as required for performance of the Services. Customer shall notify Provider in writing on or before shipment of any known health or other hazards associated with the possession or handling of the Samples or any other materials furnished to Provider.
7. Conversion of Protocols
If Customer will be providing its protocols for conversion by Provider, Provider shall not be responsible for conversion of protocols that do not contain data. If Customer requests Provider to suggest any changes to the protocols in connection with their conversion, Customer shall make a qualified scientist, who has technical familiarity with the protocols and the authority to approve any changes to the protocols on Customer’s behalf, available for evaluation and approval of the suggested changes. Any and all validation work is the sole responsibility of Customer.
8. Intellectual property
“Invention” means any inventions, discoveries, improvements, know-how, and new uses, whether patentable or not and all intellectual property rights therein, which are conceived and reduced to practice during the performance of the Services, which is or may be patentable or otherwise protectable under Title 35 of the United States Code. All Inventions invented solely by employees of one contracting party shall be the sole property of that party. To the extent a Provider Invention is incorporated into a Deliverable, Provider hereby grants to Customer a non-exclusive, perpetual, irrevocable license, with the right to sublicense through multiple tiers, to use such Invention to the extent necessarily to utilize the protocols.
9. Independent Contractor
The parties are acting hereunder as independent contractors and not as partners, agents, fiduciaries, or joint venturers. Neither party has the power or authority represent, act for, bind, or otherwise create or assume any obligation on behalf of the other party.
10. Force Majeure
Any delay in the performance of any duties (except for payment of fee owed) by either party will not be considered a breach if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or other event beyond the control of such party, provided that such party uses reasonable efforts to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
These contract terms will be governed by the laws of the State of California, without regard to conflicts of law principles which would require the application of the laws of any other state. All waivers must be in writing. A party’s failure to exercise any of its rights under this Agreement shall not constitute a waiver or forfeiture of any such rights nor of any other rights. If any provision of this Agreement is unenforceable or invalid pursuant to any applicable law, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such unenforceable or invalid provision will be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions. This represents the entire agreement between the parties as to the matters set forth herein and integrates all prior discussions and understanding between the parties. Any additional or inconsistent terms provided in any purchase order will not have any legally binding effect. Customer's rights hereunder may not be assigned to any third party by Customer except with the prior written approval of Provider.