1. Governing Provisions. CREATIVE DIAGNOSTICS, Inc ("CREATIVE DIAGNOSTICS") that is processing this order for purchase of services (the "Services") agrees to provide to Client certain services identified and agreed upon by the parties expressly conditional on Client's assent to the terms and conditions contained herein. Client agrees that the terms of Client's purchase order or any other document supplied by Client to CREATIVE DIAGNOSTICS shall not be of any force or effect, except to the extent CREATIVE DIAGNOSTICS agrees in writing thereto. These Terms and Conditions, including all writings incorporated herein by reference, any quotation issued to Client by CREATIVE DIAGNOSTICS, and those specific terms of a purchase order or other document (e.g., a work order) that are either consistent with these conditions or expressly agreed upon by CREATIVE DIAGNOSTICS in writing, constitute the entire contract between the Client and CREATIVE DIAGNOSTICS (the "Services Agreement"), and supersede all prior agreements and understandings between the parties, whether written or oral, relating to the subject matter hereof. In the event of a conflict, a quotation takes precedence over the Terms and Conditions, and a written contract signed by both parties takes precedence over either. If one or more of these Terms and Conditions are held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining Terms and Conditions shall be unimpaired. For purposes of the Services Agreement, "Deliverables" means (a) Data (defined below) generated by CREATIVE DIAGNOSTICS as a direct result of the performance of the Service; and/or (b) materials made by CREATIVE DIAGNOSTICS pursuant to the Services Agreement derived and/or made from Client Materials (defined below), and in each case as may be delivered to the Client.
2. Standard of Performance. All Services will be performed using due care in accordance with (a) the Services Agreement and (b) generally prevailing industry standards applicable to such Services. A good faith effort to start and complete all Services on time will be made, and Client will be notified if CREATIVE DIAGNOSTICS determines that there are likely to be substantial delays. CREATIVE DIAGNOSTICS expressively guarantees to perform all its procedures with professional diligence, and strives to perform quality work acceptable to all its Clients. Should quote proposal and study scope not align with Client's expectations, it is the Client's responsibility to notify CREATIVE DIAGNOSTICS in writing of any changes to this proposal prior to initiation of the project. CREATIVE DIAGNOSTICS is only responsible for performing services as outlined in this quote, unless other agreed upon in writing by CREATIVE DIAGNOSTICS and Client.
3. Changes. Changes to the Services Agreement must be in writing and signed by authorized representatives of CREATIVE DIAGNOSTICS and Client. If such changes result in an increase in the cost of the Services or affect the projected completion date of the Services (or portions thereof), the fee and/or completion date(s) shall be adjusted to a degree commensurate with such changes. Cancellation of Services in progress will result in a partial charge commensurate with the percentage of work completed at the time of cancellation, in addition to any approved expenses not cancelable at the time of termination which are actually incurred prior to termination, or other termination or cancellation charges described in the Services Agreement.
4. Materials and Information. Client will provide CREATIVE DIAGNOSTICS with sufficient amounts of Client's information and materials such as cells, compounds, samples, or other substances needed to perform the Services ("Client Materials"), as well as comprehensive data or information concerning the stability, storage and safety requirements of such Client Materials needed by CREATIVE DIAGNOSTICS to perform the Services. Unless otherwise agreed in writing, CREATIVE DIAGNOSTICS will use Client Materials in accordance with the Services Agreement and only in the performance of Services for the benefit of the Client. Unless otherwise requested by the Client, upon completion of the Services any remaining Client Materials will be destroyed. CREATIVE DIAGNOSTICS will not use the Client Materials, nor make chemical or genetic modification to the Client Materials, or attempt to determine the structure of Client Materials, except as may be agreed upon in a separate writing. CREATIVE DIAGNOSTICS will not transfer or provide Client Materials, in whole or in part, to any third party, other than a subcontractor, without the Client's prior written approval. CREATIVE DIAGNOSTICS shall comply to the best of its knowledge in all material respects with all applicable laws and governmental rules and regulations which are applicable to its use of the Client Materials, and with any written safety precautions as provided by the Client and accepted by CREATIVE DIAGNOSTICS.
5. Selection; Application; Infringement. Customer is solely responsible for (a) proper selection, application, processing and use of Products, and (b) complying with all applicable international, national, state, regional, and local laws and regulations and acquiring any additional intellectual rights that may be required for its (and its customers and any end-consumer's) use, sale, import, or manufacture of the Products or other products or services that incorporate the Products, as applicable.
Customer shall indemnify and hold CREATIVE DIAGNOSTICS harmless from and against any and all damages, liabilities, claims, or expenses (including reasonable attorneys' fees) arising out of or relating to (i) improper selection, application, processing, use or incorporation of the Products, (ii) noncompliance with any applicable international, national, state, regional, and local laws and regulations, (iii) infringement of any patent, trademark, copyright or other third party interest arising out Customer's or its customers and end consumer's use, sale, import, or manufacture of Products or other products or services that incorporate the Products, as applicable, or (iv) any use of the Products outside the permitted use expressly stated in this Agreement.
6. Intellectual Property. Except as set forth otherwise in the Services Agreement, Client shall be the exclusive owner of and shall have title to all documentation, information, records, specimens or other work product supplied by Client and/or generated by CREATIVE DIAGNOSTICS as a direct result of the performance of the Services ("Data"). Unless otherwise agreed in writing, CREATIVE DIAGNOSTICS will use Data in accordance with the Services Agreement and only in the performance of Services for the benefit of the Client. Upon completion of the Services CREATIVE DIAGNOSTICS will maintain a file of the Data for a period of no less than one (1) year. CREATIVE DIAGNOSTICS and Client shall agree that all pre-existing intellectual property remains the property and either party shall have no right or license to it ("Background IP"). Nothing herein shall be regarded as an express or implied transfer or license of a party's Background IP. CREATIVE DIAGNOSTICS is the sole and exclusive owner of all right, title and interest in and to all intellectual property claiming or covering CREATIVE DIAGNOSTICS technology.
7. Confidentiality. During performance of the Services and for three (3) years thereafter, CREATIVE DIAGNOSTICS will treat all Data as proprietary and confidential and will not disclose the same to any person except its employees, consultants, and subcontractors to whom it is necessary to disclose the Data for purposes of providing the Services. CREATIVE DIAGNOSTICS shall protect the Data by using the same degree of care as CREATIVE DIAGNOSTICS uses to protect its own confidential information, but in any event no less than a reasonable degree of care. Notwithstanding any other provisions herein, CREATIVE DIAGNOSTICS shall have no liability or obligation to Client for, nor be in any way restricted in, its disclosure or use of any Data which (a) is already known to CREATIVE DIAGNOSTICS without obligation of confidentiality to Client; (b) is or becomes publicly known by any means other than wrongful act of CREATIVE DIAGNOSTICS; (c) is received from a third party without such party's breach of obligation of confidentiality to Client; (d) is disclosed pursuant to an enforceable order of a court or administrative agency; and/or (e) is independently developed by or for CREATIVE DIAGNOSTICS. Client acknowledges that, notwithstanding anything to the contrary herein, CREATIVE DIAGNOSTICS shall be free to disclose Data, provided that in so doing CREATIVE DIAGNOSTICS never attributes or otherwise associates any such data with Client.
8. Payments. The Client shall pay CREATIVE DIAGNOSTICS according to CREATIVE DIAGNOSTICS invoice(s). CREATIVE DIAGNOSTICS shall invoice the client following payment schedules described in the quotation. The payment terms is 30 days, otherwise differently requested in the invoice. All payments due hereunder shall be made in the currency specified by CREATIVE DIAGNOSTICS in writing. If Client defaults in any payment when due, CREATIVE DIAGNOSTICS, at its option and without prejudice to its other lawful remedies, may delay performance, defer delivery, charge interest on undisputed amounts owed, and/or terminate the Services Agreement. If payment is not received by the due date, a service charge will be added at the rate of 1.5% per month (18% per year) or the maximum legal rate, whichever is less, to unpaid invoices from the due date hereof. If CREATIVE DIAGNOSTICS is compelled to bring suit to collect amounts due hereunder, it shall also be entitled to recover interest on amounts due as provided by law and reasonable attorney fees and costs of suit incurred in connection with the action. Client's acceptance of delivery of any Service based on this Service Agreement shall constitute a representation that Client is solvent.
9. Indemnity. The Client shall defend and indemnify CREATIVE DIAGNOSTICS and its affiliates, directors, officers, employees, representatives, consultants, agents and service providers (collectively, the "Company Indemnified Parties"), against any and all costs, damages, expenses (including reasonable legal fees) and losses suffered by any Company Indemnified Party in connection with any third party action, assessment, claim, demand, proceeding or suit to the extent arising or resulting from (a) the Client's negligence or willful misconduct; (b) the Client's breach of this Agreement; or (c) CREATIVE DIAGNOSTICS' use, or alleged use, in the performance of the Services in the conduct of the Project, of any Client Background Intellectual Property, Client Provided Materials or Client Provided Material Information licensed or provided by the Client to CREATIVE DIAGNOSTICS for the purpose of performing the Services in the conduct of the Project.
10. Limited Warranty. The Services Agreement (Quote) is a contract for services. CREATIVE DIAGNOSTICS's sole warranty with respect to the Services is that CREATIVE DIAGNOSTICS will perform all Services in accordance with the standard of performance set forth in Section 2 above. Client shall notify CREATIVE DIAGNOSTICS in writing of any claim for a breach of such warranty by CREATIVE DIAGNOSTICS within one (1) month after delivery by CREATIVE DIAGNOSTICS of the last-to-deliver Deliverable relating to such Services. The sole remedy of Client for breach of such warranty shall be to require CREATIVE DIAGNOSTICS to re-perform the Services (or such portion thereof as may reasonably be required to be re-performed), and, in such event CREATIVE DIAGNOSTICS shall diligently pursue the re-performance of the Services or portions thereof until completion, or, if CREATIVE DIAGNOSTICS cannot re-perform the Services (or such portion) in accordance with this limited warranty, then it shall refund amounts paid by the Client for the applicable Service giving rise to the breach of warranty.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CREATIVE DIAGNOSTICS BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY OR WARRANTY OF ANY KIND) AS A RESULT OF CREATIVE DIAGNOSTICS' FAILURE TO PERFORM THE SERVICES IN ACCORDANCE WITH THIS WARRANTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, EVEN IF CREATIVE DIAGNOSTICS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY SET FORTH IN THIS SECTION IS IN LIEU OF ANY AND ALL OTHER WARRANTIES RELATING TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION, OR THAT THE USE OR SALE OF DELIVERABLES OR INFORMATION PROVIDED HEREUNDER WILL NOT INFRINGE OR MISAPPROPRIATE ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CREATIVE DIAGNOSTICS' LIABILITY TO CLIENT FOR BREACH OF ANY TERMS AND CONDITIONS OF THE SERVICES AGREEMENT (OTHER THAN ANY BREACH OF THE WARRANTY CONTAINED IN THIS SECTION IN RESPECT OF WHICH ANY LIABILITY SHALL BE LIMITED TO RE-PERFORMANCE OR REFUND AS SPECIFIED HEREIN) SHALL BE LIMITED TO DAMAGES (OTHER THAN INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES) IN AN AMOUNT NOT TO EXCEED THE FEE PAID OR TO BE PAID BY CLIENT TO CREATIVE DIAGNOSTICS IN CONNECTION WITH THE SERVICES.
11. Termination. CREATIVE DIAGNOSTICS may terminate the Services Agreement in the event that (a) the Client breaches or fails to comply with any material provision of the Services Agreement and, where the breach or failure is capable of being remedied, fails to remedy the breach or failure to the satisfaction of CREATIVE DIAGNOSTICS within fifteen (15) days of receiving written notice thereof; (b) in the event CREATIVE DIAGNOSTICS has agreed to procure from a third party non-standard or custom Client Materials specifically for use in the performance of Services and CREATIVE DIAGNOSTICS is unable to reach agreement with such third party on the terms and conditions of such procurement, or the third party is unwilling or unable to provide the Client Materials for reasons beyond CREATIVE DIAGNOSTICS' reasonable control; or (c) in the event that any of the following actions occur in relation to the Client: an order is made for the winding up of the Client; a receiver or receiver and manager of any property of the Client is appointed; a provisional liquidator of the Client is appointed; the Client is or is deemed by law to be unable to pay its debts; the Client makes any arrangement or compromise with its creditors or members or with any class of its members or creditors; and/or the Client ceases to carry on its business in the areas necessary for the performance of its obligations under the Services Agreement.
12. Choice of Law and Jurisdiction. This Quotation shall be governed by and construed in accordance with the laws of the State of NY, U.S.A. Any litigation or other dispute resolution between the parties relating to this Quotation shall take place in the U.S. District Court where CREATIVE DIAGNOSTICS is registered. The parties consent to the personal jurisdiction of and venue in the state and federal courts within the State of NY.
13. Returned Products and Claims. Within seven (7) business days after customer's receipt of products sold, Customer must inspect the Products and give detailed written notice to Creative Diagnostics of any claim by Customer based upon the condition, quantity, or identity of the Products received or of any visible nonconformity with Creative Diagnostics' applicable specifications. If requested by Creative Diagnostics, Customer shall make available for inspection by Creative Diagnostics as to which a claim has been asserted by Customer. Customer's failure to make such claim shall constitute irrevocable acceptance of the Products delivered. Products sold that are determined to be damaged, defective or non-conforming shall not be returned without Creative Diagnostics' prior written consent and transportation charges for return shall not be paid by Creative Diagnostics unless authorized in advance.
14. Cancellation/Changes. Customer may not cancel or change an order once placed with Creative Diagnostics except with the prior written consent of Creative Diagnostics and upon terms that will indemnify Creative Diagnostics against any loss resulting from such change or cancellation. All orders and Products are subject to changes as may be required to comply with applicable laws. If Customer cancel the order while the order is already shipped by Creative Diagnostics, should pay at least 30% restocking fee (30% of order value).
15. Refund. Customer acknowledges the uncertain nature of the product itself and the services that Creative Diagnostics may provide. In the event that any product does not meet the performance standards stated in the product specification, if any, or Creative Diagnostics fails to perform the service resulting from circumstances beyond its reasonable control, Creative Diagnostics will refund customer the original price paid to Creative Diagnostics. Customer shall not claim any direct, indirect, or consequential loss or damage arising out of or in connection with Creative Diagnostics failure to provide the products or perform the services. Creative Diagnostics shall have no liability for any direct, indirect, consequential or incidental damages arising out of the use, the results of use or the inability to use any product.