| MILTENYI BIOTEC INC. TERMS AND CONDITIONS FOR PROVISION OF SERVICES |
| 1 | Governing Provisions |
| | Miltenyi Biotec Inc., (“MILTENYI BIOTEC”) agrees to provide to Client certain services identified and agreed upon by the parties (the “Services”) 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 MILTENYI BIOTEC shall not be of any force or effect, except to the extent MILTENYI BIOTEC agrees in writing thereto. |
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| 2 | Standard of Performance |
| | MILTENYI BIOTEC will perform all Services using due care in accordance with (a) the Statement of Work relating to the Services, of which these Terms and Conditions are a part (“the Services Agreement”) and (b) generally prevailing industry standards. MILTENYI BIOTEC will make a good faith effort to start and complete all Services on time and will notify Client if MILTENYI BIOTEC determines that there are likely to be substantial delays. |
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| 3 | Changes |
| | Changes to the Services Agreement must be in writing and signed by authorized representatives of MILTENYI BIOTEC and Client. If such changes result in an increase in the cost of the Services or affect the projected completion date of the Services, the fee and/or completion date 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. |
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| 4 | Materials and Information |
| | Client will provide MILTENYI BIOTEC with sufficient amounts of information and materials such as cells, compounds, samples, or other substances, as 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 MILTENYI BIOTEC to perform the Services. Prior to performing Microarray Services, MILTENYI BIOTEC will perform a QC test of the Client Materials. An additional charge will be incurred where a repetition of the pre-processing tests is required due to Client Material failing such a test. MILTENYI BIOTEC reserves the right to ship the Client Materials to other MILTENYI BIOTEC facilities for processing. All shipments of Client Materials shall be made at Client's sole risk. MILTENYI BIOTEC shall not be liable for any loss or damage to the Client Materials during transit, unless caused by gross negligence or willful misconduct of MILTENYI BIOTEC. All claims for loss or damage incurred during shipment shall be made by Client directly to the carrier. Upon completion of the Services excess Client Materials will be disposed of, unless otherwise requested by the Client in writing. Excess non-amplified RNA will be stored at MILTENYI BIOTEC GMBH at the Client's risk for a period of three months after completion of Services. On request, excess non-amplified RNA, and/or other Client Materials, shall be sent to Client subject to an additional charge. Otherwise all excess non-amplified RNA will be destroyed without further notice after the end of the three month storage period. |
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| 5 | Data |
| | 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, raw data, specimens or other work product supplied by Client and/or generated by MILTENYI BIOTEC as a direct result of the performance of the Services (“Data”). Upon completion of the Services MILTENYI BIOTEC will maintain a file of the Data for a period of no less than one year. |
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| 6 | Confidentiality |
| | During performance of the Services and for three (3) years thereafter, MILTENYI BIOTEC 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. MILTENYI BIOTEC may disclose Data to its employees, consultants, or subcontractors, provided that such employees, consultants, or subcontractors are subject to a written agreement that includes confidentiality terms at least as restrictive as those specified herein. Any employee, consultant, or subcontractor who is given access to the Data shall be informed by MILTENYI BIOTEC of these Terms and Conditions. MILTENYI BIOTEC shall protect the Data by using the same degree of care as MILTENYI BIOTEC uses to protect its own confidential information, but in any event no less than a reasonable degree of care. Notwithstanding any other provisions herein, MILTENYI BIOTEC 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 MILTENYI BIOTEC; (b) is or becomes publicly known by any means whatsoever, through no wrongful act of MILTENYI BIOTEC; (c) is received from a third party without breach of this Agreement; (d) is disclosed pursuant to an enforceable order of a court or administrative agency; or (e) is independently developed by or for MILTENYI BIOTEC. |
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| 7 | Payments |
| | Terms of sale of the Services are net 30 days of the date of invoice. Invoices shall be sent to Client upon completion of the Services and delivery to Client of the written report of the results. If Client defaults in any payment when due, MILTENYI BIOTEC, at its option and without prejudice to its other lawful remedies, may defer delivery or terminate the Services. All payments due hereunder shall be made in U.S. dollars. |
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| 8 | Use of Names |
| | Neither party shall use the other party’s name or the names of its employees in any advertising, sales or promotional material or in any publication without prior written consent of such other party. |
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| 9 | Inventions |
| | Except as set forth otherwise in the Services Agreement, Client shall be the exclusive owner of, and MILTENYI BIOTEC hereby assigns to Client, all Client Materials, Data, inventions, improvements, designs, programs, formulas, know-how and writings supplied by Client and/or generated or discovered as a direct result of MILTENYI BIOTEC’s performance of the Services, whether or not copyrightable or patentable (collectively, the “Inventions”). If requested by Client, MILTENYI BIOTEC shall, at Client’s expense, do all things reasonably necessary or appropriate to assist Client in obtaining patents or copyrights on any Inventions. Client shall not by virtue of the Services Agreement or either party’s performance thereof obtain any intellectual property or other ownership rights in any methods or processes used or developed by or for MILTENYI BIOTEC in or for the provision of Services or any documentation, records, raw data, materials (other than Client Materials), specimens, work product, concepts, information, inventions, improvements, designs, programs, formulas, know-how, or writings related thereto, except those methods and/or processes, if any, provided by Client to MILTENYI BIOTEC and designated as being owned by Client in a separate written agreement between the parties. |
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| 10 | Limited Warranty |
| | The Services Agreement is a contract for services only. MILTENYI BIOTEC’s sole warranty with respect to the Services is that MILTENYI BIOTEC will perform all Services in accordance with the standard of performance set forth in Section 2 above. Client shall notify MILTENYI BIOTEC in writing of any claim for a breach of such warranty by MILTENYI BIOTEC within one (1) month after delivery by MILTENYI BIOTEC of the written report of the results relating to such Services. The sole remedy of Client for breach of such warranty shall be to require MILTENYI BIOTEC to re-perform the Services (or such portion thereof as may reasonably be required to be re-performed), and, in such event MILTENYI BIOTEC shall diligently pursue the re-performance of the Services or portions thereof until completion or if not possible, refund payment made for such Services. IN NO EVENT SHALL MILTENYI BIOTEC BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) AS A RESULT OF MILTENYI BIOTEC’S FAILURE TO PERFORM THE SERVICES IN ACCORDANCE WITH THIS WARRANTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, EVEN IF MILTENYI BIOTEC HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. 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 OR WARRANTY OF NONINFRINGEMENT. MILTENYI BIOTEC’S 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) 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 MILTENYI BIOTEC IN CONNECTION WITH THE SERVICES. |
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| 11 | Indemnification |
| | Except to the extent proximately caused by the gross negligence, recklessness or willful misconduct of MILTENYI BIOTEC, Client shall indemnify and hold harmless MILTENYI BIOTEC, its affiliates and their respective officers, directors, employees and agents from and against any and all expenses (including, but not limited to, reasonable attorney’s fees), damages, judgments, and losses incurred by any such indemnified party as a result of or in connection with any claim, demand, or cause of action asserted by a third party for physical injury to or death of persons, physical damage to property, or infringement of intellectual property arising out of or based upon (a) Client’s manufacture, sale, or use of any quantity of the Client Materials, the Data or any product or service based in whole or in part on Client’s reliance on the Services or any portion thereof provided to Client by MILTENYI BIOTEC, or any derivative thereof, and (b) MILTENYI BIOTEC’s use or reliance on Client Materials for the performance of the Services for Client. |
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| 12 | Miscellaneous |
| | Neither MILTENYI BIOTEC nor Client shall be responsible for failure or delay in performance of its obligations related to the Services due to causes beyond its reasonable control, including but not limited to, acts of God, governmental actions, fire, labor difficulty, shortages, civil disturbances, transportation problems, interruptions of power or communications, failure of suppliers or subcontractors, or natural disasters.
It is a condition of this Services Agreement that Client will use materials provided by MILTENYI BIOTEC only for Client’s internal research purposes, such materials including, but not limited to, compounds, biological materials, and nucleic acid molecules (e.g. DNA, RNA, vectors, clones, libraries such as cDNA libraries, cells, etc.) (“Samples”). In particular, Client has no rights to sell or transfer for consideration Samples to any third party, whether or not Samples are sold or transferred for use in research.
The relationship of the parties is that of independent contractors, and nothing herein shall be construed as establishing one party, its affiliates, or any of its or their employees as the agent, legal representative, joint venture, partner, employee, or servant of the other party or its affiliates. Except as set forth herein, neither party shall have any right, power or authority to assume, create or incur any expense, liability or obligation, express or implied, on behalf of the other party or its affiliates. No waiver by either party of any breach of any provision hereof shall constitute a waiver of any other breach of that or any other provision hereof. If any part, term or provision herein is determined to be invalid or unenforceable, the remainder of the terms and conditions herein shall not be affected, and shall otherwise remain in full force and effect.
These Terms and Conditions are deemed agreed upon in the State of California, U.S.A., and their validity, construction, and effect are governed by the laws of the State of California, except as they relate to the conflict of laws. Any actions arising out of or relating to these Terms and Conditions and/or the Services will be brought in the United States District Court for the Eastern District of California in Sacramento, California or in the Superior Court of Placer County in Auburn, California. Both MILTENYI BIOTEC and the Client consent to the exclusive venue and jurisdiction of those courts. |
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