All purchases of linearDNA products & services from LineaRx, Inc. or its affiliates (collectively ”LRx”) are subject to the following terms and conditions, and by purchasing any products & services the client (“Client”) agrees to be bound by all of such terms and conditions, unless explicitly agreed otherwise.
The accompanying quotation or invoice (the “Sales Confirmation“) and these Terms and Conditions (collectively, this ”Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations warranties, and communications, both written and oral. Unless otherwise agreed in writing, this Agreement shall prevail over any of Client’s general terms and conditions of purchase regardless of whether or when Client has submitted its purchase order or such terms. Fulfillment of Client’s order does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend this Agreement.
“Affiliate” shall mean, (i) with respect to LRx, any business entity controlled by, controlling, or under common control with the LRx, and (ii) with respect to the Client, any business entity controlled by, controlling, or under common control with the Client. For the purpose of the preceding definition, a business entity shall be deemed to “control” another business entity if it owns, directly or indirectly, more than 50% of the outstanding voting securities, capital stock, or other comparable equity or ownership interest of such business entity.
“Product(s)” shall mean, those nucleic acid(s) ordered by Client, including but not limited to Client Materials that have been amplified and processed by LRx and inventory items.
“Client Materials” shall mean, the nucleic acid materials and information (including but not limited to sequence information) provided by a Client used by LRx to produce a Product or to render services.
- Payment Terms and Taxes: Unless otherwise indicated on a Sales Confirmation, Payment terms are Net 30 days from receipt of invoice. Varying payment terms, such as those included under a Client PO, are expressly disclaimed. LRx will assess a 1.5% monthly finance fee on all past due accounts. Client shall reimburse LRx for all costs incurred in collecting any overdue payments and related interest, including, without limitation, attorneys’ fees, legal costs, court costs, and collection agency fees. Prices do not, and will not, include any governmental taxes (including, without limitation, sales, use, excise, withholding, consumption or other VAT), or duties imposed by governmental authorities that are applicable to the import or purchase of the Product(s), and Client shall bear all such taxes and duties.
- Authorized Use of Products: Unless otherwise expressly indicated in a label or other documentation accompanying the Products, the Products are intended for research use only and subject in each and every case to the condition that such sale does not convey any license, expressly or by implication, to manufacture, duplicate or otherwise copy or reproduce any of the Products. It is solely the Client’s responsibility to determine whether any additional or third-party intellectual property or any other permissions or rights for use or resale of the Products in any particular application or field of use. Client acknowledges that the Products have not been tested by LRx for safety or efficacy, unless expressly stated in the label or other documentation accompanying the Products. Without limiting the foregoing restrictions, Client warrants to LRx that should Client use Products for any use other than research, Client shall conduct all necessary tests, comply with all applicable regulatory requirements, issue all appropriate warnings and information to subsequent purchasers and/or users and be responsible for obtaining any required intellectual property rights. Client represents and warrants to LRx that any Products purchased from LRx and any final articles made from them are managed in accordance with and in compliance with all applicable federal, state, and local statutes, rules, regulations, ordinances, and orders.
- Confidentiality: “Confidential Information” means any information disclosed by or on behalf of either Party or its representatives (the “Disclosing Party”) to the other Party (the “Receiving Party”) pursuant to these Agreement that is (a) marked “Confidential” or “Proprietary” or (b) otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure or by the nature of the information itself. Confidential Information does not include (i) any information that is publicly available or becomes publicly available through no action or inaction of the receiving Party; (ii) is in the rightful possession of the receiving Party without confidentiality obligations at the time of disclosure by the Disclosing Party to the Receiving Party as shown by the receiving Party’s then contemporaneous written files and records kept in the ordinary course of business; or (iii) is obtained by the Receiving Party from a third party without an accompanying duty of confidentiality and without a breach of such third party’s obligations of confidentiality. The receiving Party shall: (m) use the Confidential Information of the disclosing Party solely to exercise its rights and fulfill its obligations under this Agreement, (n) shall not disclose disclosing Party’s Confidential Information to any third parties other than its own employees or agents on a need to know basis who are subject to written obligations of confidentiality and non-use that are at least as protective of disclosing Party’s Confidential Information as these terms, except with the disclosing Party’s express written consent, and (o) take the precautions the Receiving Party employs with respect to protecting its own confidential information of a similar nature to protect the disclosing Party’s Confidential Information. All Client Materials shall be Confidential Information of Client. All information relating to LRx’s manufacturing technologies shall be the Confidential Information of LRx. This Agreement and any other aspects of a Sales Confirmation shall be the Confidential Information of both Parties. If the receiving Party becomes legally required to disclose any Confidential Information of the disclosing Party, the Receiving Party will disclose only that portion that is legally required to be disclosed and such disclosed information shall maintain its confidentiality protection for all other purposes. Upon termination or expiration of the Agreement, or upon written request of the Disclosing Party, the Receiving Party shall promptly return or destroy all documents, notes and other tangible materials representing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, that the Receiving Party may retain a copy of such Confidential Information under conditions of confidentiality solely for legal archival purposes and for compliance with the surviving provisions of this Agreement and applicable laws and regulations. The Parties expressly acknowledge and agree that any breach or threatened breach of this section by the Receiving Party may cause immediate and irreparable harm to the Disclosing Party that may not be adequately compensated by damages. Each Party therefore agrees that in the event of such breach or threatened breach by the Receiving Party, and in addition to any remedies available at law, the Disclosing Party shall have the right to seek equitable and injunctive relief, without bond, in connection with such a breach or threatened breach.
- Intellectual Property: Client shall retain all rights, title, and interest in and to the Client Materials (subject to the rights and licenses expressly provided for in this Agreement). LRx shall retain all right, title, and interest in and to intellectual property used or practiced in connection with the Product or services contemplated hereunder, including, without limitation, any suggestions, improvements or modifications to each of the foregoing (collectively, “LRx Manufacturing Technology”), whether or not developed, created or improved by either Party (alone or jointly with others), and Client agrees to assign and hereby assigns all of its rights, title and interest in and to the LRx Manufacturing Technology to LRx. No rights or licenses in, to or under either Party’s intellectual property are granted or provided hereunder, by implication, estoppel or otherwise, except to the extent expressly provided for in this Agreement. In the event LRx incorporates any LRx Manufacturing Technology into any Products shipped to Client and duly paid for by Client, LRx will grant and does hereby grant to Client a perpetual, non-exclusive, fully paid-up worldwide license to use such LRx Manufacturing Technology incorporated into such Products solely as incorporated into and solely as necessary to use such Products, subject to the terms and conditions of this Agreement. Client is solely responsible for determining if there are any restrictions on use of Products resulting from any third-party patents or other proprietary rights.
- Outsourcing: LRx retains the right to subcontract any services to subcontractors/vendors it selects, including, but not limited to performance by Affiliates. LRx provides only supplies essential information to vendors and strives to protect Client confidentiality.
- Indemnification: Client shall not send to LRx samples presenting direct or indirect hazards, or that may potentially cause direct or indirect harm to the personnel, the interests, or property of LRx.
Client agrees to defend, indemnify, and hold harmless LRx, its officers, directors, employees, affiliates, and agents from any claim, damage, or liability of any kind (including, but no limited to, any reasonable attorneys’ fees, legal costs and expenses) arising out of (i) any claim by a third party that the materials sent to LRx by Client, including but not limited to Client Materials, or other samples sent to LRx by the Client infringes any intellectual property rights of any third party; (ii) a breach of any representation or covenant of Client under this Agreement; or (iii) any other claim connected with the purchase, use, handling, or storage of the materials supplied by the Client or the Products except to the extent such occurrence arises from the gross negligence or willful misconduct on the part of LRx.
- Limited Warranty: LRx warrants that the Products will be manufactured in a good and workmanlike manner in accordance with its standard operating procedures and according to the terms of the written quote. LRx further warrants that if it issues a certificate of analysis to Client, such documentation shall be in all material respects accurate and correct. Client understands that LRx cannot guarantee that all materials supplied by Client will be capable of producing desired results or that research and/or manufacturing as defined in a written quote will produce desired results. LRx will use reasonable means to obtain desired results. The limited warranty provided herein is contingent upon complete and accurate information being submitted by the Client as well as the receipt of Client Material by LRx that is not damaged, defective, or otherwise flawed.
In the event of a breach of the above limited warranty, Client shall notify LRx within 10 days of its receipt of the Product. As Client’s exclusive remedy for any breach of the warranty, LRx shall, at its option, and within a reasonable time, either (1) use commercially reasonable efforts to correct such breach without charge to Client; or (2) allow the Client to return the Product provided by LRx for a credit equal to the previously paid fees and charges therefore.
- DISCLAIMER OF WARRANTIES: EXCEPT TO THE EXTENT EXPRESSLY PROVIDED HEREIN, THE PRODUCTS AND LRX’S SERVICES ARE PROVIDED “AS IS.” LRX AND/OR ITS THIRD-PARTY SERVICE PROVIDERS DO NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS OR LRX’S SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. YOUR USE OF THE PRODUCTS AND/OR THE LRX SERVICES IS AT YOUR OWN RISK. ACCESS TO THE SERVICES MAY BE INTERRUPTED AND THE INFORMATION AND/OR MATERIALS ASSOCIATED WITH THE PRODUCTS OR LRX SERVICES MAY NOT BE ERROR-FREE. LRX AND/OR ITS THIRD-PARTY SERVICE PROVIDERS DO NOT ASSUME ANY LIABILITY OR RESPONSIBILITY FOR THE COMPLETENESS OR USEFULNESS OF THE PRODUCTS AND SERVICES.
- LIMITATION OF LIABILITY: LRX AND/OR ITS THIRD-PARTY SERVICE PROVIDERS WILL NOT BE LIABLE TO CLIENT OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, REPUTATION, USE, OR DATA), COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT AND/OR YOUR USE OF THE PRODUCTS OR LRX SERVICES, EVEN IF LRX AND/OR ITS THIRD-PARTY SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. IN NO EVENT SHALL LRX OR ITS THIRD-PARTY SERVICE PROVIDERS’ AGGREGATE LIABILITY UNDER OR AS A RESULT OF THIS AGREEMENT AND/OR YOUR USE OF THE PRODUCTS OR SERVICES, WHETHER UNDER CONTRACT, NEGLIGENCE, TORT, INDEMNITY, WARRANTY, STRICT LIABILITY OR ANY OTHER BASIS EXCEED THE AMOUNT YOU HAVE PAID TO LRX FOR THE PRODUCTS OR SERVICES IN THE ONE MONTH PRIOR TO A CLAIM OR $500 IF YOU HAVE NOT MADE ANY PAYMENTS TO LRX, AS APPLICABLE.
Each provision set forth above that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks under this agreement between the parties. This allocation is an essential element of the basis of the bargain between the parties. You acknowledge and agree that LRx has offered the Products and the LRx services, set its prices, and entered into this agreement in reliance upon the warranty disclaimers and the limitations of liability set forth herein, that the warranty disclaimers and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between Client and LRx, and that the warranty disclaimers and the limitations of liability set forth herein form an essential basis of the bargain between Client and LRx. Each of the foregoing provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section will apply even if any limited remedy fails of its essential purpose. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations of this and the foregoing section may not apply to you.
- General Terms
a. Choice of Law; Jurisdiction; Venue; Arbitration. This Agreement will be governed by New York law, without regard to its principles of conflicts of law. You agree that any legal proceeding or disputes arising from or relating to this Agreement and/or the Services will be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the Commercial Rules of the American Arbitration Association (“AAA”) or of the International Center for Dispute Resolution (“ICDR”) in effect on the date of the commencement of the arbitration. The arbitration proceeding shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The venue of said arbitration shall be New York, New York. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement.
b. Severability. This Agreement is divisible, and any provision herein held to be violative of any applicable law, treaties, statutes or regulations will affect only that portion held to be invalid or inoperative, and the remaining portions of this Agreement will remain in full force and effect. In lieu of any such invalid or inoperative provisions, there will be added automatically as a part of this Agreement an enforceable provision as similar in terms to the severed provision as may be possible.
c. Entire Agreement. This Agreement constitutes the complete agreement and sets forth the entire understanding and agreement between you and LRx as to the subject matter of this Agreement.
d. Assignment. You may not assign or delegate any rights or obligations under this Agreement. Any purported assignment and delegation shall be ineffective. LRx may freely assign or delegate all rights and obligations under this Agreement, fully or partially without notice to you. LRx may also substitute, by way of unilateral novation, effective upon notice to you, LRx for any third-party that assumes our rights and obligations under this Agreement.
e. Section Titles. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
f. Export Controls: Client may not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Products or information (including products derived from or based on our Products or information) to any destination, entity, person or end user in violation of any applicable export control laws or regulations. Client shall provide assistance and information as needed for LRx to meet its trade compliance obligations arising from this Agreement.
g. Independent Contractors. The parties hereto are independent contractors and nothing in this Agreement will constitute the parties to partners, nor constitute one party the agent of the other party, nor constitute the relationship to be a joint venture. Neither party shall have, or shall represent that it has, the authority or power to act for or to undertake or create any obligation or responsibility, express or implied, on behalf of, or in the name of the other party.
h. Force Majeure. LRx shall not be liable for any failure to perform to the extent such failure is caused by any reason beyond the LRx’s control including the following occurrences: labor disturbances or labor disputes of any kind, accidents, pandemic, failure of any governmental approval required for full performance, civil disorders or commotions, cyber-attacks, acts of aggression, floods, earthquakes, acts of God, energy or other conservation measures, explosion, failure to utilities, mechanical breakdowns, material shortages, disease or other such occurrences.
i. Waiver. No waiver by any Party of any breach of these Terms or failure of any Party to take action to enforce or assert any right or remedy hereunder shall be deemed a waiver of any prior, concurrent, or subsequent breach. No waiver shall be effective unless made in a signed writing.