Terms and Conditions
Terms and Conditions of Sale
These Terms and Conditions of Sale shall apply to all Purchase Orders, Quotations and Project Briefs (all hereinafter defined) placed by the Client with BioIVT, LLC or its Affiliates (hereinafter defined) (“BioIVT”) on or after the Effective Date. Client’s placement of a Purchase Order, Quotation or Project Brief with BioIVT constitutes Client’s acceptance of these Terms and Conditions. All references to “BioIVT” contained herein shall be deemed references to BioIVT, LLC and its Affiliates.
1.0.1 “Affiliate” shall refer, with respect to a particular party or other entity, another person or entity that controls, is controlled by or is under common control with such party or other entity; where, for the purposes of this definition, the term “control” shall refer to the ownership of no less than fifty-one percent (51%) of the voting stock of such entity.
1.0.2 “Applicable Law” means all applicable laws and regulations governing the collection, handling, storage, banking, transport, transfer, use, disposal, import or export of Materials, Clinical Data, Client Goods and Client Confidential Information, including laws, regulations and guidelines governing data protection and privacy.
1.0.3 “Clinical Data” shall refer to any and all clinical or research information about the individual from whom the Materials were originally obtained, or about the Materials themselves, and may include pathology and autopsy information.
1.0.3 “Data” shall refer to any and all deliverables expressly set forth in a Project Brief, including without limitation, Reports and Results.
1.0.4 “Experimental Reagents” shall refer to any and all research materials supplied by the Client to BioIVT, including but not limited to antibodies, cell lines, therapeutic agents and test compounds.
1.0.5 “Materials” shall refer to any and all human biological materials, including without limitation, tissue, tissue derivatives, cell lines, blood, blood derivatives, primary cells, biofluids, and tissue microarrays.
1.0.6 “Products” shall refer to Materials and Clinical Data.
1.0.7 “Project Brief” (“PB” and sometimes also called a Work Plan or Statement of Work) shall refer to any written document setting forth the technical and scientific specifications for the Services to be performed by BioIVT that has been accepted by BioIVT.
1.0.8 “Quotation” shall refer to any written document setting forth the details of Materials or Products to be provided by BioIVT that has been accepted by BioIVT.
1.0.9 “Reports” shall refer to any and all final compilations of data, results or information titled “Report” that arise from BioIVT’s performance of the Services.
1.0.10 “Results” shall refer to experimental data and any and all information arising from BioIVT’s performance of the Services, and expressly excludes any and all Confidential Information or IP rights belonging to BioIVT.
1.0.11 “Services” shall refer to any and all services rendered by or on behalf of the Client by BioIVT as set forth in more detail in the applicable Project Brief.
1.0.12 “Specifications” shall refer to: (a) with respect to Services, the technical or scientific requirements applicable to the Services as set forth on a PB that is accepted by BioIVT; and (b) with respect to Materials or Products, the requirements applicable to the Materials or Products as set forth on a Quotation or PO that is accepted by BioIVT.
1.0.13 “Term” shall refer to the term of these Terms and Conditions, which shall commence on the Effective Date and terminate on the third (3) anniversary of the Effective Date.
BioIVT warrants that any and all of its activities under this agreement shall be in compliance with all Applicable Law. BioIVT Biospecimens are obtained according to varying levels of consent and IRB (Institutional Review Board) involvement. Client is responsible for selecting the specific consent level that complies with the Clients’ research requirements.
THE BIOLOGICAL SAMPLES SUPPLIED BY BIOIVT, OR ANY OF MATERIAL ISOLATED FROM THE SAMPLES, ARE FOR IN-VITRO RESEARCH USE ONLY. CLIENT SHALL NOT USE ANY MATERIALS OR CLINICAL DATA OBTAINED FROM BIOIVT (A) FOR ANY USE THAT IS IN CONTRAVENTION OF APPLICABLE LAW OR INFORMED CONSENT; OR (B) AS A SOURCE OF MATERIAL FOR CLINICAL THERAPIES. Human material may be used in vivo in animals.
The Client shall not transfer any Materials and Clinical Data to any third party without prior written consent from BioIVT; unless such transfer is to an Affiliate of the Client for use in a manner consistent with this Section 3 (Research Use) and is not for valuable consideration. Client will comply with all Applicable Law with respect to the handling and use of the Materials and Clinical Data.
Client will not seek to identify any individual related to the Biosamples. If Client inadvertently identifies any individual Donor included in the collection of Biosamples, Client will neither record the identity of the Donor nor share the identification of that individual with any other person, nor will Client attempt to contact the individual him/herself. Client will inform BioIVT as soon as reasonably practicable, giving reasonable detail of the circumstances under which, this occurred, but shall not disclose the identity of the Donor with BioIVT without BioIVT’s authorized, signed written consent.
Purchase orders (“PO”) may be used to acquire Products or Services from BioIVT. A PO may be placed in any commercially reasonable manner the parties determine is appropriate, including via facsimile or e-mail. Each PO will indicate the Products or Services and any appropriate Specifications related thereto, quantity, price, total purchase price, shipping instructions, requested delivery dates, appropriate billing and shipping addresses, and any other special instructions. All POs are subject to acceptance by BioIVT. In the event of any conflict between the terms of any PO and these Terms and Conditions, these Terms and Conditions shall govern the rights and obligations of the parties.
All purchases of Products, and where appropriate certain purchases of Services, shall be set forth in separate Quotations which shall be agreed to in writing by all parties. Each Quotation shall be subject to these Terms and Conditions. To the extent that any Quotation conflicts with or is inconsistent with these Terms and Conditions, these Terms and Conditions shall govern and control the rights and obligations of the parties. Each Quotation shall be separate and distinct from all other Quotations. Neither party shall have any obligation to enter into any Quotation.
6.0.1 Purchases of Services shall be set forth in separate Project Briefs (“PB”), which shall be agreed to in writing by all parties. BioIVT, subject to Section 7 (Performance), shall use reasonable commercial efforts to complete all Services in accordance with the applicable PB. Each PB shall be subject to these Terms and Conditions. To the extent that any PB conflicts with or is inconsistent with these Terms and Conditions, these Terms and Conditions shall govern and control the rights and obligations of the parties. Each PB shall be separate and distinct from all other PB. Neither party shall have any obligation to enter into any PB.
6.0.2 The Client may provide BioIVT with Experimental Reagents, Materials, Clinical Data (“Client Goods”), or Client’s Confidential Information for use in the Services. Client represents and warrants that it has all necessary consents, permits, rights, and licenses in Client Goods and Client Confidential Information required by Applicable Law to provide such Client Goods and Client Confidential Information to BioIVT for the purpose of providing Products and performing the Services. Further, Client shall comply with all Applicable Law to provide such Client Goods and Client Confidential Information to BioIVT. Nothing in these Terms and Conditions shall be deemed to grant BioIVT a license to such Client Goods or Client Confidential Information except as reasonably necessary for the performance of the Services. BioIVT shall exercise reasonable care in handling any such Client Goods or Client Confidential Information and shall, at the Client’s request, return or destroy any Client Goods remaining in BioIVT’s possession upon completion of the Services, to the fullest extent permitted by Applicable Law.
7.0.1 BioIVT shall provide all Services with all reasonable skill and care using suitably qualified and experienced personnel.
7.0.2 All BioIVT obligations set forth in these Terms and Conditions shall be subject to the following: BioIVT shall not carry out such obligations where (a) the relevant Services would lead to a conflict of interest with BioIVT’s preexisting contractual or legal obligations; (b) necessary Materials and Clinical Data are unavailable; or (c) BioIVT is prevented from doing so by any reason outside of its reasonable control, including breach of these Terms and Conditions by the Client.
7.0.3 Either party may cancel any PO, Quotation or PB at any time by providing no less than thirty (30) days prior written notice to the other party. Any such cancellation by BioIVT shall be without penalty, and their sole obligation shall be to return any advance payment paid by the Client. BioIVT shall retain the right to suspend performance of any PO, Quotation or PB or require adequate assurance satisfactory to BioIVT when, in its sole opinion, reasonable grounds exist for such action. In case of cancellation or termination by the Client of a PO, Quotation or PB which is signed and in effect, BioIVT shall retain any advance payments and the Client shall compensate BioIVT for all and any Products already collected, prepared or provided or any Services that BioIVT has already performed prior to such cancellation or termination.
7.0.4 BioIVT shall not guarantee any favorable or useful result arising from the performance of any Services or provision of Products and Data.
7.0.5 Materials shall: (a) conform in all material respects with Specifications; and (b) be free from material defects.
BioIVT’s list prices are subject to change without prior notice to the Client. Prices quoted by BioIVT shall be firm for thirty (30) days after the date of the PO, Quotation or PB unless otherwise agreed upon in writing by the Parties. BioIVT may, by giving notice to the Client at any time up to ten (10) Business Days before delivery, increase the cost set out in an invoice to reflect any increase in costs due to: (a) any factor beyond BioIVT’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labor, materials, manufacturing and shipping costs); (b) any request by the Client to change the delivery date(s), quantities or types of Material ordered, or the Specification; or (c) any delay caused by any Client instructions or the Client’s failure to give BioIVT adequate or accurate information or instructions.
Payment by the Client shall be due no later than thirty (30) days of receipt of each invoice. Client shall pay all applicable sales tax, including any and all value added tax, shipping, import or export duties, customs fees and freight charges. Interest shall be payable, calculated on a daily basis, on any overdue payments, at the maximum rate allowed by law. Client shall not assert any credit, set-off or counterclaim against BioIVT to justify withholding payment of any such amount in whole or in part. The method of payment shall be separately agreed by both parties hereto.
The parties agree that all payments made hereunder are for the Services, Products or Data, and are not for the Materials or Clinical Data themselves.
All Products and Data transferred to the Client will be shipped CIP Shipping Point (as defined by the International Chamber of Commerce Incoterms 2010. All delivery dates are best estimates possible based on current and anticipated conditions. BioIVT shall not be liable for any loss, damage or claim by the Client arising out of failure to meet an estimated delivery date. BioIVT shall keep the Client reasonably apprised of the availability and estimated delivery dates of such Products and Data.
10.0.1 All right and title to the Products and Data (but excluding, in either case, BioIVT’s IP Rights (as defined herein), shall pass to the Client upon delivery in accordance with Section 9 (Delivery) of these Terms and Conditions, and subject to receipt by BioIVT of full payment of all associated BioIVT invoices.
10.0.2 Each party shall remain the absolute and unencumbered owner of any intellectual property rights owned by or otherwise in the possession of that party at the earlier of the Effective Date of these Terms and Conditions or the date of signature of the relevant PO, Quotation or PB, including without limitation, any know-how, trade secrets, copyrights, trademarks, patent applications, and patents (hereinafter, “IP Rights”). BioIVT IP Rights shall include but not be limited to, all intellectual property rights of all Affiliates of BioIVT, specifically the BClear technology licensed by Qualyst Transporter Solutions, LLC. As between the parties, the Client shall own any invention to the extent that it is first reduced to practice by BioIVT during the course of the Services, but solely to the extent that such invention incorporates either the Client’s IP Rights or the Client’s Confidential Information; provided that (i) Client shall not be granted any ownership rights, licenses, title or any other rights in or to any BioIVT rights to the extent that such rights relate to any BioIVT IP Rights, which include, but are not limited to any method, process, assay, software, source code, information, analyses or other technology or know-how used by BioIVT in its own business; and (ii) the Client shall not assert or seek to assert against BioIVT or its other clients any such right to the extent it would preclude BioIVT from: (a) providing its Services to third parties or (b) freely utilizing BioIVT IP Rights. Except as set forth above, all IP Rights which arise in the performance of Services automatically vest in BioIVT. Save as otherwise expressly stated herein, no rights, licenses or obligations are granted by or to be implied by these Terms and Conditions. Nothing in these Terms and Conditions shall be deemed to grant the Client any license to practice any BioIVT IP Rights.
10.0.3 Client acknowledges and agrees that these Terms and Conditions do not apply to the BClear technology, which is licensed under a separate end user agreement. For terms relating to the BClear technology, please refer to the specific end user license agreement provided with the BClear product.
10.0.4 Notwithstanding the above, BioIVT reserves the right to transfer all new XpressWay™ Profile data generated for a Client immediately into its publically available database of gene expression data unless otherwise agreed in writing by both parties.
The Client shall accept any Products or Data that comply with the Specifications set forth in any Quotation, PO or PB accepted by BioIVT. The Client may reject any Products or Data that do not conform to the Specifications. To properly reject any Products or Data, the Client shall deliver written notice of its intent to reject the Products within seven (7) business days of receipt of the applicable Products, and the Data within thirty (30) days of receipt of the applicable Data, together with a written indication of the basis for such rejection. If such notice is not delivered within the specified period of time, any such Products or Data shall be deemed accepted by the Client. For any Products or Data properly rejected hereunder, Client shall be entitled to return the Products or Data, in reasonable good condition, at the Client’s expense, for replacement by BioIVT. This shall be Client’s sole and exclusive remedy for BioIVT’s breach of Section 7.0.5. (Performance).
12.0.1 The parties shall take all steps reasonably necessary to hold the other party’s Confidential Information in trust and shall not use such Confidential Information for any purpose other than that expressly stated in these Terms and Conditions; nor shall either party disclose the Confidential Information belonging to the other party to any third party without the prior written consent of the disclosing party. Each party shall destroy or return all Confidential Information belonging to the other party no later than thirty (30) days after the last date of the Term, except that each party may retain one copy of the Confidential Information of the other party for legal or administrative purposes only.
12.0.2 “Confidential Information” shall refer to any information provided to either Party by the other pursuant or relating to these Terms and Conditions that is identified by the disclosing party as confidential or proprietary or that is reasonably identifiable under the circumstances of disclosure by the receiving party as confidential, other than any information which (i) has been published or comes into the public domain other than by breach of these Terms and Conditions by the recipient; (ii) is known to the recipient prior to the date of disclosure as evidenced by written records; (iii) is disclosed to the recipient by a third party having the legal right to make such disclosure; or (iv) is developed by the recipient, independently of these Terms and Conditions. The receiving party may disclose Confidential Information belonging to the disclosing party solely to the extent required by any applicable law or competent authority (“Legal Compliance”), to which the receiving party is subject, provided the receiving party gives the disclosing party a reasonable opportunity to oppose, limit or seek confidential treatment with regard to such required disclosure. Information disclosed for Legal Compliance shall nonetheless be considered Confidential Information subject to the protections of this provision.
PRODUCTS DELIVERED PURSUANT TO THESE TERMS AND CONDITIONS MAY BE EXPERIMENTAL IN NATURE AND HAVE HAZARDOUS OR UNKNOWN PROPERTIES. BIOIVT MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OR FITNESS OF THE PRODUCTS OR DATA FOR A PARTICULAR PURPOSE. Client agrees that all individuals who handle the Materials on the Client’s behalf adhere to Universal Precautions for the Prevention of Transmission of HIV and other Bloodborne Pathogens (www.cdc.gov/niosh/topics/bbp/). If Client provides BioIVT with Experimental Reagents or Materials for use in the Services, the Client shall provide all relevant information regarding the safety, handling, use, disposal and environmental effects of such Experimental Reagents and Materials.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE CLIENT SHALL ASSUME ALL LIABILITY FOR DAMAGES OR LOSS THAT MAY ARISE FROM THE CLIENT’S USE, STORAGE, TRANSFER, PROCESSING OR DISPOSAL OF THE PRODUCTS OR DATA. TO THE FULLEST EXTENT PERMITTED BY LAW BIOIVT SHALL NOT BE LIABLE TO THE CLIENT OR ANY OTHER PARTY FOR ANY LOSS, CLAIM OR DEMAND MADE BY OR AGAINST THE CLIENT OR OTHER PARTY, DUE TO OR ARISING OUT OF THE SERVICES OR THE USE OF THE PRODUCTS AND DATA, EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF BIOIVT. TO THE FULLEST EXTENT PERMITTED BY LAW BIOIVT SHALL NOT BE LIABLE TO THE CLIENT OR ANY OTHER PARTY FOR ANY LOSS, CLAIM OR DEMAND MADE BY OR AGAINST THE CLIENT OR OTHER PARTY, DUE TO OR ARISING OUT OF THE CLIENT GOODS. CLIENT SHALL HOLD HARMLESS, INDEMNIFY AND DEFEND BIOIVT, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, INJURIES, DAMAGES, LOSSES OR SUITS INCLUDING ATTORNEY FEES, ARISING OUT OF OR IN CONNECTION WITH THE CLIENT GOODS.
BIOIVT’S LIABILITY TO THE CLIENT FOR ANY CAUSE WHATSOEVER IN RELATION TO ANY PO, QUOTATION OR PB GOVERNED BY THESE TERMS AND CONDITIONS SHALL BE LIMITED TO DIRECT COSTS AND DAMAGES ONLY IN AN AMOUNT NOT EXCEEDING THE TOTAL AMOUNT RECEIVED BY BIOIVT FROM THE CLIENT UNDER THE PARTICULAR PO, QUOTATION OR PB WITH RESPECT TO WHICH THE LIABILITY ARISES. BIOIVT’S MAXIMUM LIABILITY TO THE CLIENT IN RELATION TO THESE TERMS AND CONDITIONS FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO DIRECT COSTS AND DAMAGES ONLY IN AN AMOUNT NOT EXCEEDING THE SUM EQUIVALENT TO THE TOTAL AMOUNT RECEIVED BY BIOIVT FROM THE CLIENT UNDER THESE TERMS AND CONDITIONS. THE PARTIES HEREBY AGREE THAT THE LIMITATIONS CONTAINED HEREIN ARE REASONABLE IN LIGHT OF ALL THE CIRCUMSTANCES. TO THE FULLEST EXTENT PERMITTED BY LAW ALL LIABILITY THAT IS NOT EXPRESSLY ASSUMED BY BIOIVT IN THESE TERMS AND CONDITIONS IS HEREBY EXCLUDED. UNDER NO CIRCUMSTANCES SHALL BIOIVT BE LIABLE TO THE CLIENT FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES REGARDLESS OF THE CAUSE.
The Client, and any individuals designated by the Client may publish the results of work performed with the Products or Data, except to the extent such results include proprietary data or Confidential Information belonging to BioIVT. The Client shall use reasonable efforts to reference BioIVT as the provider of the Products or Data in any scholarly or industry publication arising from the use of the Products or Data. Notwithstanding, neither party shall use the name, logo, trademark or service mark of the other party, or any variation thereof, for any purpose in advertising, press release, publicity or promotional literature without the prior written consent of the party whose mark is proposed to be utilized.
These Terms and Conditions, and all POs, Quotations and PBs governed by it, are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersede and merge all prior discussions or proposals between the parties. These Terms and Conditions take precedence over any conflicting terms, including without limitation, terms included on an invoice, PO, Quotation, PB or receipt.
The relationship between the parties is that of independent contractors. Nothing in these Terms and Conditions shall be interpreted to create a partnership, joint venture or employment relationship. No party may act as an agent of the other party hereunder, except as otherwise provided herein.
Facsimile or PDF electronic signatures shall be accepted as original signatures. Placement of any orders or the transaction of any business by electronic medium shall be subject to these Terms and Conditions. These Terms and Conditions may be executed as two or more counterparts, each of which shall be deemed an original agreement.
These Terms and Conditions are not enforceable by any person or entity that is not a party to it.
Neither party shall be liable for any failure or delay in performing its obligations under the Terms and Conditions to the extent that such failure or delay is caused by an Unforeseen Event. An Unforeseen Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable.
22.1. If the Client becomes subject to any of the events listed in condition 22.2, or BioIVT reasonably believes that the Client is about to become subject to any of them and notifies the Client accordingly, then, without limiting any other right or remedy available to BioIVT, BioIVT may cancel or suspend all further deliveries under these Terms and Conditions or under any other PO, PB or Quotation between the Client and BioIVT without incurring any liability to the Client, and all outstanding sums with respect to Products prepared or collected for or Services performed for the Client shall become immediately due.
22.2. For the purposes of condition 22.1, the relevant events are: (a) the Client files a petition in bankruptcy or for reorganization pursuant to the Federal Bankruptcy Code or any similar state or foreign law; (b) an order is made for the appointment of an administrator to manage the Client's affairs, business and property, or such an administrator is appointed; (c) an order is made for a trustee, receiver or liquidator to be appointed with respect to the Client, or any creditors of the Client has an involuntary petition in bankruptcy filed against it pursuant to the Federal Bankruptcy Code or any similar state or foreign law, and such order or petition shall not be discharged or dismissed within sixty (60) days,; (d) the Client is adjudicated as bankrupt or be declared insolvent by court decree, or makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts generally as they become due, or consents to the appointment of a receiver or receivers over all or any part of its property; (e) an application to a court for protection from its creditors is made by the Client (f) any event occurs, or proceeding is taken, with respect to the Client in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 22.2(a) to 22.2(e) (inclusive); or (g) the Client suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
Any notice required under these Terms and Conditions shall be in writing and shall be delivered by certified mail, return receipt requested; postage prepaid, or guaranteed overnight delivery service to the addresses provided by each party to the other.
The Client shall not assign or transfer these Terms and Conditions without the prior written consent of BioIVT, which shall not be unreasonably withheld. BioIVT may assign or transfer these Terms and Conditions, in whole or in part, to an Affiliate pursuant to a merger, acquisition or sale of substantially all of the assets of the company.
If any provision of these Terms and Conditions shall be void, unlawful or for any reason unenforceable, that provision shall be severed from these Terms and Conditions and, if possible, replaced by a term or provision which, so far as practicable achieves the legitimate aims of the Parties. Any provision deemed void, unlawful or for any reason unenforceable shall not affect the validity and enforceability of the remaining provisions of these Terms and Conditions. Failure or delay by BioIVT in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of its rights under the Contract. Any waiver by BioIVT shall not be deemed a waiver of any subsequent breach.
The parties agree that any amendment, revision, waiver or alteration to these Terms and Conditions shall be in writing and signed by both parties. No waiver by either party of any breach of these Terms and Conditions shall be a waiver of any preceding or subsequent breach. No waiver by either party of any right under these Terms and Conditions shall be a waiver of any other right. The parties shall not be required to give advance notice to enforce strict adherence to the terms of these Terms and Conditions.
A breach of Sections 3, 10 or 12 may result in irreparable and continuing harm to a party for which there may be no adequate remedy at law and entitles an affected party to seek injunctive relief as well as other and further relief as may be appropriate. The Parties agree to submit to the personal jurisdiction of the State of New York and further agree that any relief sought under this Agreement shall be pursued in either federal or state court in the State of New York.
The validity, interpretation and enforcement of these Terms and Conditions shall be governed by the laws of the State of New York without reference to conflict or choice of law provisions. If a dispute arises under or relating to these Terms and Conditions, the parties shall submit the dispute to binding arbitration in the State of New York. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of such arbitration shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses and reasonable attorney fees. Any such arbitration shall be conducted by an arbitrator experienced in scientific research and commercial law and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who is employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction. Nothing in this Section 28 may be interpreted so as to limit or modify Section 27 (Injunctive Relief).