World ADC 2024
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The parties agree that these terms and conditions (the āAgreementā) shall govern the performance of the biospecimen procurement services and/or other services with respect to biospecimens and/or associated clinical data (āServicesā) by Discovery Life Sciences, LLC (āDiscoveryā) to customer (āCustomerā) 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.Ā
2. Customer represents, warrants, and acknowledges the following:
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 Customerās actions or omissions (including, but not limited to, Customerās failure to timely provide documents, materials, or information or to cooperate with Discovery).Ā
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 Discoveryās 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.Ā
(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 Discoveryās 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.Ā
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 attorneysā fees and other costs or expenses incurred as a result of Discoveryās 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) daysā 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, āMaterial Breachā 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 partyās 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 Customerās confidential information to: (A) Discoveryās 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 Customerās 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 partyās 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 Customerās full and complete payment of all sums due hereunder, Customer will be the sole and exclusive owner thereof. For purposes of clarity, only data provided by Discovery in connection with prospectively collected biospecimens that are fully exhausted by Customer with no portion thereof retained or otherwise used by Discovery, shall be and remain the exclusive property of Customer. 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 Discoveryās 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 (āDiscovery Partiesā) from and against any and all third party losses, liabilities, claims, causes of action, suits, awards, damages, expenses, costs, fees (including reasonable attorneysā fees) whether joint or several (collectively, the āLossesā) relating to, arising from or in connection with this Agreement, the Services contemplated herein, or the Customerās 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, DISCOVERYāS 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 CUSTOMERāS SOLE REMEDY HEREUNDER, DISCOVERY MAY CHOOSE TO REPEAT THE SERVICES PERFORMED AT DISCOVERYāS 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.Ā
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 āForce Majeure Eventā), 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.Ā
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.Ā 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 (āDiscoveryā) 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 āAgreementā), 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.
Customer may place orders through the Discovery website located atĀ 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.
Accounts Receivable
Discovery
900 Hudson Way
Huntsville, AL 35806
USA
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