The parties agree that these terms and conditions (the “Agreement”) shall govern the performance of the biospecimen procurement services and/or other services with respect to biospecimens and/or associated clinical data (“Services”) by Discovery Life Sciences, LLC (“Discovery”) to customer (“Customer”) as described in the quote in which they are referenced.
1. Performance of Services. Discovery may use its affiliates in the performance of the Services. The parties shall perform their obligations hereunder in accordance with this Agreement and applicable laws and regulations. The parties shall comply with any applicable validated methodology and generally accepted professional standards of care. Discovery will follow its own standard operating procedures in the conduct of the Services unless the parties have specifically agreed otherwise in this Agreement.
2. Customer represents, warrants, and acknowledges the following:
· any biospecimens procured from Discovery shall: (a) be used for research use only; (b) be used in compliance with all applicable laws and regulations and (c) not be used for diagnostic testing or human application (such as transplant use or otherwise administered to any human subject). Customer shall not further sell, transfer, or distribute for commercial purposes any biospecimens procured from Discovery without the prior written consent of Discovery;
· its employees and other representatives who will be handling any biospecimens procured from Discovery have the required knowledge and training to perform legal and ethical research using such biospecimens, and it has adequate systems, procedures and trained personnel in place to oversee the receipt, handling, storage, use and disposal of such biospecimens. It shall handle all such biospecimens as if they are potentially infectious;
· any activity undertaken with the biospecimens will be conducted in compliance with all applicable laws and regulations.
3. Nonconformance. In the event any Services do not conform to the requirements set forth in this Agreement and the applicable quote, as the sole and exclusive remedy for such non-conformance, Discovery shall promptly re-perform such Services at no additional charge to Customer; provided, however, Discovery will have no obligation to reperform and will have no liability whatsoever to Customer for errors, delays or other consequences to the extent arising from Customer’s actions or omissions (including, but not limited to, Customer’s failure to timely provide documents, materials, or information or to cooperate with Discovery).
4. Shipping.
(a) Domestic Shipping. Products are shipped F.O.B. shipping point, freight is prepaid and added to the invoice. Discovery will select method of delivery; title passes to the Customer upon Discovery’s delivery of products to the transportation company. If a shipment is damaged, Customer should accept the shipment and retain all shipping materials for inspection, make a note on the transportation company waybill of any visible damage at the time of receipt and report the damage to Discovery Life Sciences Client Services (1-866-838-2798). Customer is responsible for delivery of products damaged by the shipping company. If any shipping discrepancies are discovered, claims must be made within 10 days of receipt of shipment Products may not be returned without prior authorization by Discovery. Due to the perishable nature of products, Customer must promptly contact Discovery Life Sciences Premier Support (1-866-838-2798). For FFPE blocks and derivative products, samples may not be returned after 45 days from the date of shipment.
(b) International Shipping. Products are shipped with Incoterms DAP (Delivered At Place), where freight is prepaid and added to the invoice. Discovery will select method of delivery; title passes to the Customer upon Discovery’s delivery of products to the Customer. Customer is responsible for importing products and Customer is responsible for any and all duties and taxes required for import. If a shipment is damaged, Customer should accept the shipment and retain all shipping materials for inspection, make a note on the transportation company waybill of any visible damage at the time of receipt and report the damage to Discovery Life Sciences Client Services (1-866-838-2798). Customer is responsible for delivery of products damaged by the shipping company. If any shipping discrepancies are discovered, claims must be made within 10 days of receipt of shipment. Products may not be returned without prior authorization by Discovery. Due to the perishable nature of products, Customer must promptly contact Discovery Life Sciences Premier Support (1-866-838-2798). For FFPE blocks and derivative products, samples may not be returned after 45 days from the date of shipment.
5. Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, DISCOVERY MAKES NO, AND EXPRESSLY DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF RESULTS, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, AND THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE.
6. Payment. In exchange for the Services, the Customer shall pay Discovery according to the terms specified in the Agreement. Unless otherwise specifically stated in the Agreement, the Customer shall render all payments due and payable to Discovery within thirty (30) days from issuance of invoice. The Customer will pay interest in the amount of 1.5% per month (or the maximum amount permitted by law if less than 1.5% per month) for any undisputed payment not timely received. The Customer will also reimburse Discovery for any attorneys’ fees and other costs or expenses incurred as a result of Discovery’s efforts to collect late payments. Customer shall pay Discovery within thirty (30) days of receipt of an invoice. As and when required by local law, VAT, GST or similar sales taxes or duties actually incurred by Discovery and imposed by any governmental will be invoiced at current statutory rates and paid to Discovery by the Customer in addition to all fees and expenses owing.
7. Term and Termination. This Agreement shall commence once executed by the Customer and shall continue until completion of the Services or if earlier terminated as below. A party may terminate this Agreement upon ninety (90) days’ written notice to the other party. A party may also terminate this Agreement on written notice effective immediately if the other party commits a Material Breach (as hereinafter defined) of this Agreement which cannot be cured, or for a Material Breach of this Agreement which is capable of cure but is not cured within thirty (30) days of receipt of written notice from the other party. For purposes of this Agreement, “Material Breach” is the failure to substantially comply with any material provision of this Agreement, including without limitation failure by the Customer to pay any undisputed portion of an invoice within thirty (30) days of receipt of notice of an overdue invoice. A party may terminate this Agreement on written notice effective immediately if the other party (i) ceases, or threatens to cease, to carry on business or maintain itself as a going concern; or (ii) becomes insolvent, is dissolved or liquidated, makes a general assignment for the benefit of its creditors, files or has filed against it, a petition in bankruptcy, or (iii) has a receiver appointed for a substantial part of its assets and is not discharged within thirty (30) days after the date of such appointment.
8. Confidentiality. Each party agrees that (i) it will use the disclosing party’s confidential information only as may be necessary in performing its obligations or exercising its rights hereunder; (ii) it will treat such information as confidential and proprietary; (iii) it will take all reasonable precautions to protect the confidential information; (iv) it will not otherwise appropriate such information to its own use or to the use of any other person or entity; and (v) without the prior written consent of the disclosing party it will not disclose such information orally or in writing to any third party; provided, however that Discovery may disclose the Customer’s confidential information to: (A) Discovery’s affiliates and its and their respective subcontractors, agents or representatives, all of whom are bound to obligations of confidentiality and non-use substantially similar to those set forth herein; (B) the Customer’s subcontractors, agents or representatives, and other third parties, all of whom have a need to know such information in connection with the Services; (B) third-party auditors retained by the Customer; or (C) the FDA or other regulatory authorities as required by applicable laws or regulations. Nothing in this Agreement will be construed to restrict disclosure or use of information that (a) was in the possession of or rightfully known by the recipient, without an obligation to maintain its confidentiality, prior to receipt from the other party; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by the recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by the receiving party without reference to the other party’s confidential information; or (e) is required by law to be disclosed.
9. Intellectual Property Rights. Discovery agrees that any and all deliverables solely created in the course of rendering the Services and as part thereof are made on a work-for-hire basis, and therefore all intellectual property rights therein and derivative work thereof shall vest solely with Customer, and, subject to Customer’s full and complete payment of all sums due hereunder, Customer will be the sole and exclusive owner thereof. Notwithstanding the foregoing, where the deliverable includes digital images, Discovery hereby grants to Customer a non-exclusive, non-transferable and non-sub-licensable license to use the images for research use only. All rights in and to the images including, without limitation, all copyright and other intellectual property rights relating to the images, are retained by Discovery. Customer grants to Discovery a non-exclusive license to use any other Customer
materials or intellectual property provided or disclosed to Discovery as necessary in the performance of the Services. Customer acknowledges and agrees that any technology relating to Discovery’s processes, procedures, methods and techniques in the performance of the Services, shall be the exclusive property of Discovery and shall not be considered a deliverable.
10. Indemnification & Limitation of Liability and Insurance. The Customer shall promptly indemnify, defend and hold harmless Discovery and its affiliates and its and their respective directors, officers, employees, subcontractors and agents (“Discovery Parties”) from and against any and all third party losses, liabilities, claims, causes of action, suits, awards, damages, expenses, costs, fees (including reasonable attorneys’ fees) whether joint or several (collectively, the “Losses”) relating to, arising from or in connection with this Agreement, the Services contemplated herein, or the Customer’s use of the deliverables.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR RELATED TO THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), HOWSOEVER ARISING, EITHER OUT OF BREACH OF THIS AGREEMENT (INCLUDING BREACH OF EXPRESS OR IMPLIED WARRANTY), NEGLIGENCE, STRICT LIABILITY, TORT OR ANY OTHER THEORY, EVEN IF THE OTHER PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN ADDITION, DISCOVERY’S LIABILITY FOR DIRECT DAMAGES ARISING THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY THE CUSTOMER FOR THE SERVICES COMPLETED HEREUNDER. IN LIEU OF DIRECT DAMAGES AND AS THE CUSTOMER’S SOLE REMEDY HEREUNDER, DISCOVERY MAY CHOOSE TO REPEAT THE SERVICES PERFORMED AT DISCOVERY’S SOLE COST AND EXPENSE.
THE CUSTOMER ACKNOWLEDGES THAT IT IS ASSUMING ALL RISK AND RESPONSIBILITY FOR ITSELF FOR THE USE OF THE SERVICES AND ANY DELIVERABLE PROVIDED BY DISCOVERY TO THE CUSTOMER, INCLUDING BUT NOT LIMITED TO PERSONAL INJURIES, DAMAGES, OR DEATH RESULTING FROM THE USE THEREOF, THE APPLICATION OF LAWS OR REGULATIONS, OR THE INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS ARISING FROM THE USE THEREOF.
11. Miscellaneous.
Relationship of the Parties. The Parties are independent contractors and not agents of each other unless otherwise explicitly agreed to in writing. Nothing in this Agreement is intended or shall be deemed to constitute a partnership, principal/agent, employer/employee, or joint venture relationship. Neither Party shall have the power or right to bind or obligate the other Party, nor shall it hold itself out as having such authority, except to the extent, if at all, specifically provided for in this Agreement or as authorized in writing.
Force Majeure. In the event either party is delayed, hindered or prevented from performing any act required hereunder by reasons beyond its ability to reasonably anticipate and prevent, control or mitigate (a “Force Majeure Event”), then performance of such act (except for payment of money owed) shall be extended for the reasonable period of such delay, and either party shall be granted a reasonable period of time to perform after the cessation of the reason for the delay. Notwithstanding the foregoing, the customer shall not be relieved from payment of non-cancellable expenses incurred by Discovery as a result of a Force Majeure Event.
Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, excluding that body of law known as choice of law, and shall be binding upon the parties hereto in the United States and worldwide.
Survival. The terms, provisions, representations and warranties contained in this Agreement that, by their context, are intended to survive the performance thereof by either or both parties hereunder, shall so survive the expiration or termination of this Agreement.
Entire Agreement. This Agreement, in conjunction with its attachments, embodies the entire and integrated understanding between the parties and supersedes all prior agreements or understandings, negotiations, or representations either written or oral, regarding its subject matter. To the extent that terms and/or provisions of a purchase order or other document relating to the performance of or payment for the Services conflict with these Terms and Conditions, these Terms and Conditions shall control. No modification of this Agreement shall be deemed effective unless in writing and executed by both parties.
Subject to the following terms and conditions, Discovery Life Sciences (“Discovery”) agrees to perform, and Customer agrees to pay for, genomic services of Customer’s material for deoxyribonucleic acid or ribonucleic acid (DNA or RNA) isolation, including but not limited to blood, saliva, cells, tissue, buccal swabs, and fecal matter along with the material’s corresponding information (“Biospecimens”) as set forth in the order submitted by Customer through Discovery’s website (“Services”). These Standard Terms and Conditions, together with the Discovery quote to the Customer, any Customer order accepted by Discovery, Sample Requirements, Shipping Instructions, and Hazardous Materials Declaration referenced herein, constitute the complete and exclusive agreement between Discovery and Customer concerning the Services (the “Agreement”), and no addition to, or modification of, any provision of this Agreement, including contrary terms in any Customer purchase order, shall be binding on Discovery unless made in writing and signed by a duly authorized representative of Discovery.
Orders
Customer may place orders through the Discovery website located at https://gslweb.discoveryls.com/index. The order shall be deemed accepted upon Customer’s satisfactory submission of the order, Discovery’s receipt of the appropriate Biospecimens and required documentation as set forth herein.
Payment
1. No Services will be performed by Discovery until Purchase Order number or, if applicable, applicable payment is received from Customer. Payment by check shall be made payable to Discovery, and forwarded with a copy of the invoice to:
Accounts Receivable
Discovery
900 Hudson Way
Huntsville, AL 35806
USA
2. Services for institutions outside the United States, and Services for libraries not prepared by Discovery, must be pre-paid in their entirety.
3. Samples within 5% of target coverage and/or read depth will not be topped off, and samples that fall outside of Service Provider specification will not be eligible for top-off without additional time and/or cost. Samples that fail library QC will incur partial charges.
4. Customer is responsible for ensuring Services requested on an order match the Services represented on a quote. In the event that there is a discrepancy between Services requested on an order and Services represented on a corresponding quote, the Services shown on the quote will take precedence. Billing will be based on Services actually performed.
5. Line-Item pricing will increase 5% compounded annually on or around February 1 of each calendar year for the duration of this project. Invoicing for work completed will reflect increased prices on any samples processed after the annual price increases go into effect on or around February 1 of each calendar year.
Biospecimen Handling
1. All Biospecimens must meet Discovery’s Sample Requirements, a current copy of which is located at https://gslweb.discoveryls.com/information/sample
2. Biospecimens submitted to Discovery may be assessed for quality under its Quality Control Guidelines. In the event Customer chooses to proceed with sequencing for a Biospecimen that fails quality control, Discovery shall not be responsible for the quality of the results produced and all costs associated with the Services performed will be remain due and payable.
3. Discovery will treat any Biospecimen failing quality control that is replaced by Customer as a brand new Biospecimen requiring a new order and new Biospecimen identification number. Additional time and/or cost will apply for processing of this new biospecimen.
4. Discovery will not pool Biospecimens unless specified within the request Services and jointly agreed by the Discovery and Customer project teams. If a Biospecimen shows insufficient quantity for the intended assay, Customer must provide a new aliquot of sufficient volume and concentration. Any unused Biospecimens will be returned to the Customer upon request. Shipping and handling fees will apply.
5. Orders should be submitted to Discovery in half-skirt or full-skirt PCR plates with no deep wells. Orders that do not arrive in plates may be subject to additional handling charges per Biospecimen at Discovery’s discretion.
6. Discovery does not guarantee sequencing performance of non-Discovery created libraries. Further information regarding Discovery’s library services can be located at https://gslweb.discoveryls.com/information/library. Customer is responsible for all sequencing costs associated with submitted libraries.
7. Following Customer’s project request, Discovery will provide a project quotation, which will include a summary of the Requested Services, project costs, any applicable assumptions/terms, and shipping instructions. All Biospecimens must comply with the Sample Requirements.
8. Together with Customer’s Biospecimens submitted to Discovery, Customer shall submit an executed Hazardous Materials Declaration, a current copy of which is located at https://gslweb.discoveryls.com/static/pdf/GSL_Hazardous_Materials.pdf. Declaration is required to be received no later than in conjunction with specimens to be tested.
9. Discovery does not guarantee performance nor accept liability for sample performance. Discovery has implemented many quality control/quality assurance procedures throughout all steps of every protocol to ensure optimal performance; if the customer is submitting samples that are not prepared by Discovery, any step that was completed incorrectly by Customer can have significant implications for downstream performance. Therefore, any Customer choosing to send semi-processed samples or libraries is assuming all risk of poor performance, as Discovery will not guarantee any work not performed in-house.
Delivery and Retention of Data
1. Discovery will typically deliver DNA sequencing order results in FASTQ files (raw reads and quality scores) unless other formats are requested on the Customer’s order. Analysis of most types can be performed for additional fees. This analysis includes alignment to a genome (reference or non-standard, providing a genome exists).
2. RNA-Seq results will be delivered in FASTQ files. All RNA-seq data analysis, including alignment, is available but not included in standard experiment costs. A basic RNA-seq analysis (alignment, differential expression assessment between two or more Biospecimens) may be performed as fee-for-service.
3. FASTQ files and results in other formats as requested by Customer will be distributed through cloud-based delivery as a download or through a push delivery to a client-specified cloud bucket. Additional copies will be subject to additional fees.
4. Raw data of results, in FASTQ format, from Customer orders is backed up and retained in archival storage for a period of time meeting regulatory requirements but no less than 30 days; additional analyses are not retained. If Customer raw data of results must be retrieved and/or re-analyzed during the archival period, additional fees may apply, and such extraction and/or reanalysis may be most efficiently performed as a separate unique project. After the project-specific archival period, Customer raw data of results shall be destroyed, with notice to Customer, in accordance with these terms and conditions, as may be modified from time to time.
General
1. This Agreement constitutes the complete and exclusive agreement between Discovery and the Customer concerning these Services and no addition to or modification of any provision of this Agreement shall be binding on Discovery unless made in writing and signed by a duly authorized representative of Discovery. This Agreement shall be construed in its entirety according to its plain meaning and shall not be construed against either party. Discovery rejects any additional or different terms or conditions contained in Customer’s response, communications, or other documentation (including Customer-generated purchase orders), and such additional or different terms or conditions shall be void and of no effect and shall not apply. These terms and conditions may be modified from time to time as posted on the Discovery website.
2. Although Discovery prefers and requests that its Services be acknowledged in any Customer publication related to, derived from, or based on the Services, such acknowledgement is not a prerequisite for processing Biospecimens. If, however, a Discovery staff member provides intellectual input to a project, he or she should be listed in the author line. This contribution may be in the form of data analysis, application of a protocol in a new or unique way or writing a section of the manuscript. Discovery will discuss on a case-by-case basis.
