ARIMA GENOMICS, INC. Services Terms and Conditions
General. These Services Terms and Conditions (“Terms”) govern the provision of Services (as defined below) by Arima Genomics, Inc. (“Arima”) to you (also referred to as “Customer”). Unless specified otherwise by Arima, these Terms apply to all research services provided to Customer by Arima from time-to-time including through the application of Arima’s proprietary assay and testing technologies (collectively, the “Services”), according to the detailed description in the applicable quotation or other written statement of work (“SOW”), as submitted by us and accepted by you. These Terms, together with the quotation, if any, and SOW, form the entire contract between you and us with respect to your purchase of Services. Performance of Services is conditioned on your acceptance of the Terms and the SOW, whether by execution of the SOW, a contract, or a PO that references the SOW.
1. Services Requirements. Customer shall be responsible for providing Arima with all biological samples (collectively, “Samples”), materials, instructions and related information required for Arima to perform and complete the Services (collectively, “Materials”), as such requirements may be listed in the applicable purchase order, SOW, or other request for Services (collectively, the “Services Requirements”).
2. Performance of Services. The Services shall be performed exclusively on the basis of Materials (including in particular, the Samples) provided by Customer. Customer acknowledges that a failure or delay to provide Materials in accordance or compliance with the Services Requirements may result in an inability or delay in Arima’s performance of the Services. All Materials sent to Arima shall be sent at Customer’s own risk and Arima shall have no liability with respect thereto (including insufficient quantities of Samples and/or loss of or damage to Samples). We may delegate performance of the Work, or portion thereof, to an affiliate or authorized subcontractor, provided that all Work will be performed in accordance with the PO or SOW.
3. Acceptance of Request for Services. No request for Services shall be binding on Arima unless accepted by Arima in writing. Arima shall have no liability or obligation to Customer with respect to Services, or portions of Services, that are not accepted. By providing a purchase order, the Customer acknowledges acceptance of these Terms.
4. Delivery. The end product or data generated in the performance of the Services (such information collectively referred to as “Results”), shall be deemed to be delivered per the Statement of Work. All services shall be deemed accepted by Customer upon delivery. Customer will notify Arima in writing of any nonconformity promptly after delivery, describing the nonconformity in detail.
5. Prices, Taxes and Shipping Charges. The price(s) for the Services will be those listed on the accompanying quote and expire on the date specified on the quote. Customer is responsible for any federal, state, local, sales, VAT, GST or other taxes, duties, or other governmental assessments that apply to Customer’s purchase of the Services. Any such taxes, duties and charges payable by Arima will be included in Customer’s invoice, unless otherwise negotiated.
6. Payment. All invoices shall be issued and payable in United States Dollars, and are due and payable thirty (30) days after the date of invoice, which we will send to you when we complete the Work (or portion thereof), according to the payment schedule in the SOW. Each purchase order or request for Services shall be considered a separate and independent transaction and payment therefore shall be made accordingly. Amounts outstanding more than thirty (30) days after the date of invoice shall be subject to an interest rate of one and one-half percent (1.5%) per month, or the maximum interest rate allowed by applicable law, if less.
7. Standard of Performance; No Warranty. Arima shall use the Materials provided by Customer solely for the performance of the Services and shall perform the Services in accordance with all applicable laws and regulations. Results are provided “as is” and Arima disclaims all express and implied warranties of merchantability or fitness for a particular purpose with respect to the Services and the Results. Due to the inherent uncertainty of research services in the life sciences industry, Arima does not guarantee any particular outcome with respect to the Services, including whether the Results are correct or complete or suitable for a particular application or use. Customer acknowledges that the Services and Results are provided FOR RESEARCH USE ONLY. The Services do not have United States Food and Drug Administration or equivalent foreign regulatory agency clearance or approval and neither the Services nor the Results are approved for or intended for use in a diagnostic or therapeutic setting, or in any other manner that would require regulatory approval.
8. Ownership of Materials and Results. Customer represents and warrants that it has the right to provide the Materials (including the Samples) to Arima in accordance with these Terms. Customer warrants that any Materials containing hazardous material will be packaged in accordance with applicable laws and clearly identified as containing hazardous material(s). Customer shall retain all right, title and interest in the Materials provided hereunder, and the entire risk of loss or damage to provided Materials remains with Customer. Solely as between Arima and Customer, all Results shall be the property of Customer.
9. Limited Rights. All intellectual property rights in Arima’s technologies, intellectual property, and know-how related to the Services and their performance will at all times remain exclusively vested in Arima and/or its licensors.
10. Indemnification. Except to the extent directly caused by Arima’s gross negligence or willful misconduct in performing its obligations under these Terms, Customer shall indemnify, defend, and hold harmless Arima, its officers, agents, employees, distributors, and affiliates from any third party claim, loss, damage, expense, or other liability (including reasonable attorneys’ fees and costs) arising out of Customer’s (i) provision of Materials to Arima for the performance of Services; (ii) request for Arima to use methods, materials or processes other than those specified by Arima and normally used by Arima in performing the Services; (iii) Customer’s modification or use of the Results, including analysis and interpretation; or (iv) failure to comply with these Terms.
11. Limitation of Liability. EXCEPT FOR LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, IN NO EVENT SHALL ARIMA BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE, GOODWILL, USE, BUSINESS, OPPORTUNITY OR OTHER FINANCIAL LOSS OR BUSINESS INTERRUPTION, OR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, WARRANTY, PURSUANT TO ANY STATUTE, OR ON ANY OTHER BASIS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND/OR PERFORMANCE OF SERVICES (INCLUDING DELIVERY OF RESULTS), WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT ARIMA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Arima’s maximum liability arising out of or in connection with these Terms shall in all events be absolutely limited to the amount paid by the Customer for the Services.
12. Changes & Termination. Changes to the Services must be agreed by both parties in writing, and may require changes in the fees or timelines.
Arima may terminate the order if (a) you breach any material provision of the Terms and fail to remedy the breach to our satisfaction within 15 days after our written notice to you; (b) we are unable to obtain third party materials or technology specified in the Statement of Work, for reasons beyond our reasonable control;(c) we determine that biosecurity, biosafety, and/or feasibility reasons prevent or are likely to prevent the performance of the Services, or (d) you are, or are deemed by law to be, unable to pay your debts or perform your obligations under the Terms. You will have the right to terminate any Statement of Work upon 30 days’ prior written notice to us. Termination of Services in progress will result in a partial charge commensurate with the percentage of Services completed at the time of cancellation, in addition to any other termination or cancellation charges specified in the Statement of Work.
13. Non-Exclusivity. Unless expressly agreed in writing, all Services are provided on a non- exclusive basis, and we reserve all rights for ourselves and our affiliates to provide third parties with deliverables that are identical or similar to deliverables, provided that in doing so, we will not use any Customer Materials or information received from you to perform Services for any third party. Notwithstanding anything else in the Terms, where we perform the Services without reliance on Customer Materials or confidential information you provided us, we reserve all rights to commercialize such Services as a catalog product.
14. Confidentiality. Customer agrees to keep confidential any non-public technical information, commercial information (including prices), or instructions received from Arima as a result of discussions, negotiations, and other communications between Customer and Arima in relation to the Services or the Results.
15. Governing Law and Venue. These Terms and any disputes arising out of or relating to these Terms shall be governed by and interpreted in accordance with the laws of the State of California, U.S.A., without giving effect to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or the purchase of the Services and is hereby expressly disclaimed.
16. Arbitration. Any dispute, claim or controversy arising out of or relating to these Terms, shall be determined by confidential binding arbitration conducted by a single arbitrator in the English language, under generally accepted arbitration rules and procedures in a venue to be determined by Arima. The decision of the arbitrator shall be final and binding on the parties. The costs of any arbitration, including administrative fees and fees of the arbitrator, shall be shared equally by the parties; provided that each party shall bear the cost of its own attorneys and expert fees. The decision of the arbitrator may be entered in any court of competent jurisdiction for a judicial recognition of the decision and applicable orders of enforcement. Nothing in this Section 16 is intended to limit a party’s ability to apply to a court of competent jurisdiction for appropriate restraining orders or temporary injunctive relief pending resolution of an arbitration proceeding.
17. Severability. If any section, paragraph, provision or clause or any portion thereof in these Terms is (i) found or held to be invalid or unenforceable by a court of competent jurisdiction or (ii) inconsistent with the local laws or regulations at Customer’s location, the remainder of these Terms shall be unaffected and remain valid and enforceable.
18. Assignment. Arima may assign or transfer any of its rights or obligations under these Terms in connection with a merger, sale of all or substantially all of its assets, or other transfer or change of control relating hereto.
19. Entire Agreement. These Terms [together with the Services Requirements], Quote for Services and Statement of Work constitute the entire agreement between Arima and Customer, and supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding the transaction hereunder; provided that a written contract covering the same subject matter signed by both of Customer and Arima takes precedence over these Terms [and the Services Requirements], Quote for Services and Statement of Work unless expressly provided otherwise.
20. Compliance. The parties agree to comply with applicable laws and regulations. Arima reserves the right to suspend performance if Customer is in violation of applicable laws or regulations.