Terms and Conditions for Services
These Terms and Conditions are attached to and incorporated as part of an accepted proposal (the “Order”) and together form an agreement (the “Agreement”) for research and related services (the “Services”) to be provided by Diversigen, Inc., a Texas corporation (“Diversigen”) to the Customer identified in the attached Order (“Customer”).
1. Baylor College of Medicine (“BCM”), has granted Diversigen the exclusive right to retain BCM to perform research services (“Research Services”) through BCM’s Alkek Center for Metagenomics and Microbiome Research (“CMMR”) and other BCM laboratories on behalf of third party customers as the sole commercial provider of such services on behalf of BCM, CMMR and other BCM Laboratories.
2. Diversigen will cause BCM to perform the Research Services in accordance with the applicable protocols defined in the Order. BCM will use bioanalytical or microbiological methods to perform the Research Services that are consistent with industry standards and applicable law, and will ensure that BCM employees performing work for the Order are appropriately trained and qualified and that none of such employees are: (a) debarred by the FDA pursuant to the Generic Drug Enforcement Act of 1992, as amended (21 U.S.C. § 301, et seq.), (b) disqualified under 21 CFR 312.70, or (c) suspended by the Office for Protection of Research Risks under 45 CFR Part 46. To BCM’s knowledge, neither it nor any of such employees are under investigation for such debarment, disqualification or suspension.
3. Customer agrees to pay an initial deposit if specified in the Order and interim and final invoices at the times and in the amounts specified in the Order no later than thirty (30) days after receipt of invoice. In the case of a disputed invoice, Customer agrees to pay all undisputed amounts and notify Diversigen of the details of the disputed items and use best efforts to resolve the disputed items within fifteen (15) days. Payments shall be made in U.S. dollars according to the payment instructions on the invoice and will include any applicable taxes and wire transfer fees (if applicable). Invoices not paid by their due date shall be subject to interest on the unpaid balance at the rate of one and one-half (1 ½%) percent per month, or the maximum rate permitted by law, whichever is less. Customer shall reimburse Diversigen for the costs of collection, including, without limitation, reasonable attorneys’ fees, of any overdue amount owed by Customer to Diversigen; the collection costs shall also be subject to the interest charges. Customer shall not hold back or set-off any amounts owed to Diversigen for any reason.
4. Customer shall be solely responsible for delivery of sufficient amounts of the materials listed in the applicable Order (“Materials”) directly to BCM as specified in the Order, in the manner required and adhering to the guidelines specified in the Order and in compliance with applicable laws and regulations. Upon completion of the Order, Diversigen shall retain or cause BCM to return or dispose of any unused Materials at Customer’s expense in the manner specified in the Order. In the absence of specific provision in the Order as to the return of Materials, Diversigen may retain Materials for research purposes only or may dispose of any materials in its sole discretion. Customer shall disclose to Diversigen and BCM any potentially harmful, hazardous, or infectious properties associated with any Materials supplied to BCM under an Order that are actually known to Customer or reasonably suspected by Customer. A failure by Customer to disclose any such hazardous property actually known by it to Diversigen and BCM shall constitute a material breach of this Agreement.
5. Pursuant to Diversigen’s agreement with BCM, BCM will have primary responsibility for complying with all applicable laws rules, and regulations, as well as with BCM policies, protocols, and procedures arising out of the performance of Research Services covered by each Order. Diversigen will cause BCM to advise Customer which of its policies, protocols, and procedures is relevant to each Order. Customer will be solely responsible for securing all IACUC, IRB, FDA, and any other such approvals necessary for BCM to carry out Research Services, and Diversigen will cause BCM or CMMR to use reasonable, good faith efforts to inform Customer if/when such requirements are necessary. Diversigen will assist Customer in obtaining such approvals as requested.
6. BCM has agreed to regulatory inspections and to provide reasonable notification to Diversigen of any such inspections. Diversigen will notify Customer of any such inspections promptly upon receipt of notification from BCM. Customer may visit BCM facilities upon fifteen (15) days’ advance notification and in coordination with BCM’s Compliance Department and Office of Research. Customer will be allowed to inspect, in a commercially reasonable manner, lab procedures used to perform Research Services, reports of the work performed and the results, and quality assurance records.
7. Diversigen agrees to indemnify and hold harmless Customer, its officers, directors, shareholders, employees and agents from and against all claims, loss, cost, damage or expense, caused by any act or omission by BCM or Diversigen, their respective officers, directors, shareholders, employees or agents, arising out of or in connection with the Services, except and to the extent that any such claims, loss, cost, damage or expense is caused by or arises out of or in connection with an act or omission by Customer, its officers, directors, shareholders, employees or agents, including without limitation their negligence, gross negligence or willful misconduct; and provided, however, that in no event shall Diversigen’s liability to Customer with respect to any Order for the breach of this Agreement or any act or omission hereunder, including without limitation its negligence, gross negligence or willful misconduct, exceed the total amount paid by Customer to Diversigen with respect to the Order. DIVERSIGEN SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, LOSS OF INCOME OR PROFITS OR BUSINESS INTERRUPTION DAMAGES ARISING FORM OR RELATING TO ANY BREACH OF THIS AGREEMENT OR ANY ACT OF NEGLIGENCE OR GROSS NEGLIGENCE, NOTWITHSTANDING THAT DIVERSIGEN MAY HAVE BEEN ADVISED THAT CUSTOMER COULD SUFFER SUCH DAMAGES.
8. Diversigen agrees to hold as confidential and not disclose to any third parties all information regarding Customer, its projects, including, but not limited to, Customer name, project descriptions, project results, and project contact names, until such information enters the public domain other than by or through Diversigen, except that Diversigen may disclose such information to BCM in connection with BCM providing the Research Services. BCM has agreed with Diversigen to hold all such information confidential. During discussions around Orders and Reports contemplated under this Agreement, it is anticipated that Diversigen and/or Customer may disclose or deliver (the “Disclosing Party”) to the other (the “Receiving Party”) certain Confidential Information (as defined below). The Parties agree to the following terms in order to assure the confidentiality of such Confidential Information in accordance with the terms of this Agreement. For the purposes of this Agreement, the following is Confidential Information: All trade secrets or confidential or proprietary information designated as such either orally or in writing by the Disclosing Party. Orally disclosed Confidential Information shall be noted as such during conversations between the Parties, and written Confidential Information shall be noted as such, whether by letter or by the use of an appropriate proprietary stamp or legend, prior to the time any such Confidential Information is disclosed. The contents of any Order or Report prepared under this Agreement shall be considered Confidential Information. The Receiving Party shall hold in confidence, and shall not disclose to any person outside its organization, other than disclosure by Diversigen to BCM in connection with BCM providing the Research Services, all Confidential Information of the Disclosing Party, and shall use such Confidential Information only for the purpose for which it was disclosed. The Receiving Party shall disclose Confidential Information received under this Agreement only to persons within its organization who have a need to know such Confidential Information in the course of the performance of their duties and who are bound to protect the confidentiality of such Confidential Information. The obligations of the Receiving Party specified above shall not apply, and the Receiving Party shall have no further obligation to maintain the confidentiality of any Confidential Information which: (i) is disclosed in a printed publication available to the public, is described in an issued patent anywhere in the world, is otherwise in the public domain at the time of disclosure, or becomes publicly known through no wrongful act on the part of the Receiving Party; (ii) is known to the Receiving Party or becomes known to the Receiving Party through disclosure by sources other than the Disclosing Party which have the right to disclose such Confidential Information; (iii) is generally disclosed to third parties by the Disclosing Party without similar restriction on such third parties; or (iv) is approved for release by written authorization of the Disclosing Party. In addition, in the event that the Receiving Party is legally required, based on the written opinion of the Receiving Party’s outside legal counsel, to disclose any Confidential Information in response to a subpoena, discovery or other court order, the Receiving Party will give the Disclosing Party prompt written notice of such requirement so that the Disclosing Party may seek an appropriate protective order or other remedy, and/or waive compliance with certain provisions of this Agreement, and the Receiving Party will cooperate with the Disclosing Party to obtain such protective order. In the event that such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the relevant provisions of this Agreement, the Receiving Party will furnish only that portion of the Confidential Information that is legally required to be disclosed, based on the written opinion of Receiving Party’s outside legal counsel, and use its best efforts to obtain assurances that confidential treatment will be accorded to such Confidential Information. Unless otherwise specified in writing, all Confidential Information remains the Disclosing Party’s property. Upon request of the Disclosing Party, the Receiving Party will return or destroy all Confidential Information received from the Disclosing Party, except for one (1) copy, which the Receiving Party may deposit with its legal counsel solely to monitor its obligations under this Agreement.
9. “Invention” shall mean any discovery, development, method, improvement, advance or technology, whether patentable or not. Diversigen understands and agrees that Materials provided to BCM by Customer for the purposes of executing the Research Services are the property of Customer. The data developed through the execution of such Research Services shall be owned, as among Customer, BCM and Diversigen, by Customer and shall constitute the Confidential Information of Customer (“Customer Data”), and Customer shall own all Inventions contained in the Customer Data or arising from its use. However, unless otherwise expressly provided in an Order, data resulting from analysis of control samples provided by Customer may be incorporated into the non-public reference database of BCM for research purposes. Customer understands and agrees that any Invention arising out of the execution of the Research Services hereunder but not contained in or arising from the Customer Data (each, a “Diversigen Invention”), shall be owned by Diversigen. Examples of a Diversigen Invention may be (but are not limited to) an improved process for handling samples, or a refinement to a sequencing technique.
10. This Agreement shall begin on the Effective Date and shall remain in effect until terminated by written notice by either party (the period from the Effective Date to the date of such termination being referred to herein as the “Term”). Termination of this Agreement shall not affect the rights and obligations of the Parties, which shall have accrued prior to termination, including, without limitation, the confidentiality obligations set forth in Section 15 of this Agreement. Notwithstanding any termination, this Agreement shall remain in full force and effect with respect to any Order then pending until its completion. Following any termination of this Agreement by Customer, Customer agrees that it will not place orders for Research Services with BCM, directly or indirectly, for a period of twelve (12) months from the termination date.
11. Diversigen will maintain in full force and effect throughout the Term insurance coverage for commercial general liability and professional services/errors and omissions liability in amounts appropriate to the conduct of its business.
12. For purposes of this Agreement and in connection with any activity of Diversigen hereunder, Diversigen’s relationship with Customer will be that of an independent contractor, and nothing in this Agreement shall be deemed to create any form of principal-agent relationship, partnership, employer-employee relationship, or joint venture between the Parties.
13. The Parties shall at all times during the Term of this Agreement comply with all laws and governmental regulations applicable to any activities pursuant to this Agreement, including without limitation any applicable U.S. trade and export control laws or regulations.
14. With respect to activities that would involve the physical presence of any employee or agent of Customer on BCM premises, Customer agrees to observe and obey all applicable BCM policies and procedures, such as laboratory animal care and use program requirements, safety training, occupational health, biosafety and chemical safety requirements, gowning requirements, and materials handling requirements. Customer acknowledges and agrees that BCM will refuse access to all employees and agents of Customer who are unwilling or unable to comply.
15. This Agreement shall be deemed to be subject to, and have been made under, and shall be construed and interpreted in accordance with the laws of the State of Texas. No conflict-of-laws rule or law that might refer such construction and interpretation to the laws of another state, republic, or country shall be considered. This Agreement is performable in part in Harris County, Texas, and the Parties mutually agree that personal jurisdiction and venue shall be proper in the state and federal courts situated in Harris County, Texas, and agree that any litigated dispute will be conducted solely in such courts.
16. Customer agrees that it will not use the name, trademarks or service marks of Diversigen or BCM in any advertising, publicity, news release, product labeling, or for any commercial purpose without prior written approval of an Authorized Representative of Diversigen or BCM, as applicable. Diversigen agrees that it will not use the name, trademarks or service marks of Customer in any advertising, publicity, news release, product labeling, or for any commercial purpose without prior written approval of Customer.
17. This Agreement is personal to the Parties and shall not be assignable or otherwise transferable without the prior written approval of the other Party; provided, however, either Party may assign this Agreement in connection with a sale of all or substantially all the stock or assets of such Party, including any merger or consolidation, and a substantial change in ownership or control of a Party shall not require the prior written approval of the other Party. This Agreement will inure to the benefit of and be binding upon each Party, its successors and permitted assigns. No assignment will relieve either Party of the performance of any accrued obligation that such Party may then have under this Agreement.
18. The Parties hereby agree that neither Party intends to violate any public policy, statutory or common law, rule, regulation, treaty or decision of any government agency or executive body thereof of any country or community or association of countries. If any provision hereof should be held invalid, illegal or unenforceable in any respect in any jurisdiction, then, to the fullest extent permitted by law: (i) all other provisions hereof will remain in full force and effect in such jurisdiction and will be liberally construed in order to carry out the intentions of the Parties hereto as nearly as may be possible; and (ii) such invalidity, illegality or unenforceability will not affect the validity, legality or enforceability of such provision in any other jurisdiction. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any provision hereof prohibited or unenforceable in any respect.
19. No failure on the part of either Party to exercise and no delay in exercising any right, power, remedy, or privilege under this Agreement, or provided by statute or law, or in equity or otherwise, including, without limitation, the right or power to terminate this Agreement, will impair, prejudice, or constitute a waiver of any such right, power, remedy, or privilege or be construed as a waiver of any breach of this Agreement or as an acquiescence therein, nor will any single or partial exercise of any such right, power, remedy, or privilege preclude any other or further exercise thereof or the exercise of any right, power, remedy, or privilege, except as otherwise provided for herein.
20. The Parties will each be excused for any failure or delay in performing any of its respective obligations under this Agreement, if such failure or delay is caused by an act of God or the public enemy, any accident, explosion, fire, storm, earthquake, flood, drought, peril of the sea, riot, embargo, war, or foreign, federal, state or municipal order issued by a court or other authorized official, seizure, requisition or allocation, any failure or delay of transportation, shortage of or inability to obtain supplies, equipment, fuel or labor or any other circumstance or event beyond the reasonable control of the Party relying upon such circumstance or event (“Force Majeure”); provided, however, that it notifies the other Party in writing thereof as soon as practical following the commencement of the circumstance or event and that it uses reasonable efforts to cause such event of Force Majeure to abate.
21. No amendment, modification, waiver, termination or discharge of any provision of this Agreement, nor consent to any departure by either Party therefrom, will in any event be effective unless the same will be in writing specifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the both Parties, and each such amendment, modification, waiver, termination, or discharge will be effective only in the specific instance and for the specific purpose for which given. No provision of this Agreement will be varied, contradicted, or explained by any oral agreement, course of dealing or performance, or any other matter not set forth in an agreement in writing and signed by both Parties.
22. Each Party will duly execute and deliver, or cause to be duly executed and delivered, such further instruments, and do and cause to be done such further acts and things, including without limitation, the filing of such additional assignments, agreements, documents, and instruments, that may be necessary or as the other Party hereto may at any time and from time to time reasonably request in connection with this Agreement, or to carry out more effectively the provisions and purposes of this Agreement, or to better assure and confirm unto such other Party its rights and remedies under this Agreement.
23. No right or license is granted under this Agreement by either Party to the other, either expressly or by implication, except as specifically set forth herein.
24. Headings used herein are for convenience only and will not in any way affect the construction of this Agreement, or be taken into consideration in interpreting this Agreement. Each Party acknowledges that it and its counsel have received and reviewed this Agreement and that normal rules of construction, to the effect that ambiguities are to be resolved against the drafting Party, shall not apply to this Agreement or to any amendments, modifications, exhibits or attachments to this Agreement. Any notices to be given to either party shall will be deemed to have been given for all purposes (a) when received, if hand-delivered or sent by a reputable overnight delivery service, (b) when received, if sent by fax and receipt of such fax is confirmed, and (c) five (5) business days after mailing, if mailed by certified or registered mail, postage prepaid, return receipt requested to the addresses provided in the Order. The terms and conditions herein constitute the entire agreement between the Parties and shall supersede all previous agreements, whether electronic, oral or written, between the Parties hereto with respect to the subject matter hereof. No agreement of understanding bearing on this Agreement shall be binding upon either Party hereto unless it shall be in writing and signed by the duly authorized officer or representative of each of the Parties and shall expressly refer to this Agreement. Electronic communication between the Parties shall not constitute an agreement or understanding, unless it is subsequently reduced to writing and signed by the duly authorized officer or representative of each of the Parties and shall expressly refer to this Agreement. This Agreement may be executed in multiple counterparts, each of which will be deemed an original and all of which together will constitute one instrument. A facsimile transmission or scanned electronic copy (PDF file) of this signed Agreement bearing a signature on behalf of a party will be legal and binding on such party.