GENERAL TERMS & CONDITIONS OF SALE
1.1 All orders for products and Services (as hereinafter defined) accepted by SeqCoast Genomics, LLC and its affiliates (“Affiliates”) (collectively “SeqCoast”) will be governed by these General Terms and Conditions of Sale (these “Terms and Conditions”). These Terms and Conditions apply to the Quotation (as defined in Section 1.2) and together form the Agreement (the “Agreement”).
1.2 “Quotation” or “Quote” means a formal statement by SeqCoast setting out the estimated cost for Services issued to a customer, who may be an individual or an Institution (“Customer”). “Institution” meaning the entity, institution or laboratory identified on the Quote. The Quotation may be provided herewith, online, or provided separately. Unless SeqCoast and Customer have signed a separate agreement for the specific services set forth in the Quote, with the express written intent to supersede these Terms and Conditions, any provisions contained in any document issued by Customer are expressly rejected and if these Terms and Conditions differ from the terms of Customer’s order, these Terms and Conditions shall be construed as a counteroffer and shall not be effective as an acceptance of the Customer’s order. The Agreement contains the complete and exclusive statement of the agreement between SeqCoast and Customer with respect to Customer’s purchase of the Services. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by SeqCoast and Customer. SeqCoast’s failure to object to terms contained in any subsequent communication from Customer will not be a waiver or modification of the terms set forth in the Agreement. Customer’s issuance of an order to SeqCoast, SeqCoast’s commencement of the Services set forth in the Quotation, or Customer’s payment for Services will constitute Customer’s acceptance of the terms of the Agreement.
2.1 Performance of the Services. SeqCoast shall perform the Services as described in the Quote (the “Services”) in accordance with the Agreement. Where applicable, SeqCoast or its Affiliate shall produce the Results (as defined in Section 5.3) and make the Results available for Customer’s review on SeqCoast’s customer web portal.
2.2 Samples used for Services. SeqCoast shall have no obligation or liability for samples of biological materials and/or items sent by Customer to SeqCoast to be processed (“Samples”) as part of SeqCoast’s provision of Services including Samples requiring refrigeration. SeqCoast does not typically store sequencing Samples and materials. SeqCoast may dispose of, or destroy Samples and materials, after the analysis has been performed or SeqCoast may elect, in its sole discretion, although SeqCoast is not obligated to do so, to retain Samples per SeqCoast’s standard operating procedures and retention policies then in effect. SeqCoast has no obligation to ship Samples back to Customer. In the event SeqCoast agrees in writing to ship Samples back to Customer, SeqCoast will package said Samples using appropriate materials for the condition of Samples and in accordance with prevailing regulations. Under no circumstances will SeqCoast be responsible for the condition of the Samples. All transportation and associated costs will be at Customer’s expense. SeqCoast will not be responsible or accept liability for Samples lost, damaged, or compromised in transit due to a carrier’s actions or inactions.
Prices, Fees, and Billings.
3.1 Fees. The fees for products and Services are set forth in the applicable Quote and shall be valid for a period of thirty (30) days from the date of Quote unless otherwise set forth in the applicable Quote. Products and Services provided after thirty (30) days from the date of Quote, shall be at SeqCoast’s then current fees. Notwithstanding the same, SeqCoast may increase its fees for products and Services at any time in the event that SeqCoast’s vendors increase their fees by the amount of said increase.
3.2 Prices are exclusive of taxes (including sales, use and VAT) and all such taxes, fees or charges are the responsibility of Customer. If SeqCoast is required to pay any such tax, fee or charge, Customer shall reimburse SeqCoast or provide SeqCoast at the time the order is submitted with an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
3.3 Payment of Fees. SeqCoast will invoice Customer upon completion of the Services. Customer shall pay invoices as follows: (i) if Services are purchased via credit card, then Customer shall pay at the time of the online check out process and (ii) if Services are purchased by PO (Purchase Order) and Customer has been granted credit terms, then Customer shall pay the applicable invoice net thirty (30) days from the date of invoice. Unless otherwise set forth on the applicable Quote, all invoices shall be paid in United States currency.
3.4 Disputed Services. Any dispute about invoices must be raised within thirty (30) days of the invoice date. The challenge of a result does not entitle Customer to defer payment. If Customer is an Institution with a principal investigator, invoices may be consolidated and reflect all purchases made under the authority of the principal investigator upon SeqCoast’s prior written consent.
3.5 Payment Methods. Payments may be made by credit card and bank direct transfer (ACH, wire, etc.). Any other method of payment must receive prior written agreement from an authorized representative of SeqCoast. Customer agrees to pay a 1.50% service fee for payments made via credit card. Customer agrees to pay a $30.00 service fee for payments made via wire transfer and agrees to pay a $60.00 service fee if such wire transfers include instructions that recipient (SeqCoast) pays outgoing fees.
3.6 SeqCoast is entitled to require payment of up to one hundred percent (100%) of the quoted order price as a condition of acceptance of Customer’s order.
3.7 Late Payments. Any payment not received by SeqCoast by the due date, shall accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. Customer shall also be responsible for attorneys’ fees and other costs of collection, if any, incurred by SeqCoast in attempting to collect any amounts due from Customer.
3.8 Prepaid Fees. Customer shall pay fees in advance of the request for, or performance of, the Services (“Prepaid Fees”) where required by SeqCoast. Prepaid Fees are nonrefundable when paid and will expire if any Prepaid Fees remain twelve (12) months after the date of SeqCoast’s last Service to Customer. SeqCoast may apply the Prepaid Fees to any Quote or other amounts owed by Customer.
Duties of Customer in Delivering Samples or Materials
4.1 The Samples, materials or information provided by Customer must be in a condition that makes the processing of ordered Services and the preparation of reports/analyses possible without difficulty. SeqCoast is entitled to conduct an initial examination of the Samples, materials or information to check their condition before processing the Samples, or using them in sequencing processes. Customer bears the cost of this initial examination, if the Samples, materials or information do not comply with the requirements described in this clause 4.1. If the result of the initial examination is that an analysis or production is impossible or is possible only under more difficult conditions than originally anticipated (for example, because the Samples, materials or information are degraded), then SeqCoast shall be entitled to terminate the order and Customer shall bear costs incurred by SeqCoast to the date of termination.
4.2 Customer must ensure, and hereby represents and warrants, that no Samples or materials pose any danger to the sampling site; transportation vehicles or facilities; or SeqCoast’s and any of its third party contractors’ or representatives’ laboratories and/or premises, instruments, personnel or representatives. It is Customer’s responsibility to insure compliance with hazardous waste regulations, including, but not limited to, regulations regarding information, transportation and disposal of hazardous waste and to inform SeqCoast’s or SeqCoast’s third party contractors’ or representatives’ personnel or representatives about Samples or materials health and safety concerns, including any known or suspected toxic or other contaminant that may be present in the Sample or materials and its likely level of contamination as well as the risks to SeqCoast’s or its third party contractors’ or representatives’ premises, instruments, personnel and representatives related to potential contamination.
4.3 Customer shall be responsible for, and shall indemnify, defend and hold SeqCoast and its third party contractors and representatives harmless from all costs, damages, liabilities and injuries that may be caused to or incurred by SeqCoast or SeqCoast’s third party contractors’ or representatives’ or their personnel or representatives including damages, liabilities and injuries occurring on the sampling site; during the transportation; or in the laboratory and/or premises caused by Customer’s Samples or materials or by conditions on the sampling site. Customer shall bear all extraordinary costs for adequate disposal of hazardous waste resulting from the Samples or materials, whether or not described as hazardous waste. At SeqCoast’s request, Customer must provide SeqCoast with the exact composition of the Samples and materials.
Intellectual Property Rights.
5.1 All intellectual property rights in SeqCoast’s models, programs, methodologies, know-how, general knowledge, products, Services and deliverables (including any modifications and derivative works thereof) regardless of whether or not conceived within the performance of Services to Customer shall remain the sole and exclusive property of SeqCoast.
5.2 At all times, Samples supplied by Customer shall remain the property of Customer. SeqCoast is granted an unlimited, irrevocable and fully paid license to use the Samples to perform Services to Customer hereunder.
5.3 Results. Upon payment in full for the Services, SeqCoast will provide Customer with the data produced as a result of the Services derived from the Samples provided by Customer (the “Results”). The Results which are specific to Customer’s Samples will be owned by Customer. In addition, except as otherwise set forth in these Terms and Conditions, Customer will own all rights in the written and electronic records, notes, reports and data regarding the Results (the “Records”).
5.4. Anonymized Data. SeqCoast is hereby granted an unlimited, irrevocable and fully paid license to use Anonymized Data in providing it products and service to its customers. “Anonymized Data” is defined as all data collected or resulting from the provision of SeqCoast’s products and Services to Customer that does not contain any personally identifiable information or any Results that are specific to Customer.
Term and Termination.
6.1 Term. The term of the Agreement shall commence on the date of the Quote and shall continue until completion of the Services set forth in the Quote.
6.2 Termination. Either party may terminate the Agreement upon written notice if the other party has breached any of its material obligations under the Agreement, and (a) such breach has not been cured within fifteen (15) days after written notice of the breach, or (b) if a plan, reasonably acceptable to the non-breaching party, is not implemented to cure as soon as practicable after notice of the breach. In the event of termination due to Customer’s material breach, SeqCoast may, at its sole discretion, either (i) return all Samples in its possession to Customer at Customer’s expense, or (ii) destroy all Samples at Customer’s expense. In either case, Customer shall continue to be responsible for (A) any fees incurred by SeqCoast prior to the effective date of termination, (B) fees incurred by SeqCoast with respect to wind-down services, and (C) non-cancellable expenses committed to prior to the effective date of termination.
7.1 In the course of the performance of the Agreement, SeqCoast or its Affiliates and/or Customer (each as the receiving party as the case may be) may acquire confidential and proprietary materials and information concerning the other party (each the disclosing party as the case may be), which the disclosing party marks or otherwise identifies in writing as being confidential, including, but not limited to, any technical, scientific, or business information, irrespective of the form of communication (“Confidential Information”). For clarification, Samples are the Confidential Information of Customer and non-public information concerning SeqCoast’s products and services are the Confidential information of SeqCoast regardless of whether identified in writing as being confidential. Each receiving party of the disclosing party’s Confidential Information agrees not to use such Confidential Information other than for performance of its obligations under the Agreement, nor to transfer or otherwise disclose to any third party, any Confidential Information concerning the other party, unless and except to the extent that such use or disclosure is consented to in writing in advance by the disclosing party. Each party shall (i) give access to such Confidential Information solely to those of its or its affiliates’ directors, officers, employees, representatives, agents and advisors (collectively, “Representatives”) with the need to have access thereto for the party’s performance under the Agreement and who are bound by obligations of confidentiality and restricted use consistent with those set forth in the Agreement, and (ii) take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own Confidential Information, but in no event shall a party apply less than a reasonable standard of care to prevent such disclosure or unauthorized use.
7.2 The term “Confidential Information” does not include information which (i) is or becomes generally available to the public other than through the fault of the receiving party, (ii) the receiving party can demonstrate by written records was within the receiving party’s possession or otherwise known to the receiving party prior to its being furnished to the receiving party by or on behalf of the disclosing party, provided that the source of such information was not bound by a confidentiality obligation to the disclosing party, (iii) becomes available to the receiving party on a non-confidential basis from a source other than by or on behalf of the disclosing party, provided that such source is not bound by a confidentiality obligation to the disclosing party, or (iv) the receiving party can demonstrate by evidence was developed by or on behalf of the receiving party independent of knowledge or information obtained from the disclosing party. To the extent any Confidential Information is required by applicable law to be disclosed to a governmental authority, the receiving party may disclose that portion of such Confidential Information that in the opinion of its counsel is required to be disclosed, provided, however, that to the extent permitted by applicable law, the receiving party shall use its best efforts to obtain the agreement of such above-mentioned authority to maintain the confidentiality of any such information and shall give the disclosing party prompt notice of such required disclosure in order to allow the disclosing party to seek protective treatment of such information.
Representations and Warranties.
8.1 Customer Representations. Customer represents and warrants that Customer has all ownership and other necessary rights to the Samples required to permit SeqCoast and its Affiliates to perform the Services. Customer has read and understands these Terms and Conditions, has the capacity to enter into the Agreement and perform its obligations hereunder, and the Agreement is valid and enforceable against it. If Customer is an Institution as identified on a Quote: (a) the person signing the Quote has the power and authority to bind the Institution to the terms of this Agreement, including the payment obligations set forth in Section 3 and (b) this Agreement is valid and enforceable against the Institution.
8.2 SeqCoast Representations. SeqCoast represents and warrants that SeqCoast has the authority to enter into the Agreement and perform its obligations hereunder, and the Agreement is valid and enforceable against it. SeqCoast will perform the Services consistent with industry standards and in accordance with all applicable federal, state and local laws, rules and regulations.
8.3 Indemnification. Customer will indemnify, defend, and hold SeqCoast harmless from all damages resulting from Customer’s breach of the representations and warranties made to SeqCoast pursuant to this Section 8.1 and SeqCoast will indemnify, defend, and hold Customer harmless from all damages resulting from SeqCoast’s breach of the representations and warranties made to Customer pursuant to this Section 8.2.
Limitation of Liability and Disclaimer of Warranties.
9.1 Damages Limitations. NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, SEQCOAST’S TOTAL LIABILITY TO CUSTOMER FOR DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT, ANY QUOTE OR ANY OTHER WRITTEN AGREEMENT MADE PURSUANT HERETO, SHALL NOT EXCEED, AND SEQCOAST SHALL NOT BE REQUIRED TO PAY, INDEMNIFY OR REIMBURSE CUSTOMER FOR ANY AMOUNT IN EXCESS OF, THE AMOUNT PAID UNDER THE QUOTE ON WHICH SUCH LIABILITY IS BASED. CUSTOMER’S CLAIM FOR A RETURN OF SUCH AMOUNTS PAID SHALL BE CUSTOMER’S EXCLUSIVE REMEDY FOR ANY DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL ANY PARTY BE ENTITLED TO INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING IN CONNECTION WITH THE DEFAULT OR BREACH OF ANY OBLIGATION OF ANY OTHER PARTY UNDER THE AGREEMENT.
9.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES AND THE RESULTS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. SEQCOAST HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, TO CUSTOMER AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SEQCOAST OR SEQCOAST EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF CUSTOMER’S RIGHTS.
Terms Applicable to Institutions.
To the extent an Institution is identified in the Quote, the terms of this Section shall apply.
10.1 SeqCoast will provide the Institution with access to the Results.
10.2 SeqCoast may terminate any individual’s account at the direction of the Institution.
10.3 SeqCoast shall have no liability with respect to providing the Results to any individual identified on the Quote or individual representing themselves to be acting on behalf of the Institution so long as SeqCoast is acting upon the good faith belief that such individual is entitled to receive the Results. SeqCoast shall have no obligation to undertake any investigation prior to providing such individual with the Results.
11.1 Conflict. In the event of any conflict between these Terms and Conditions Agreement and the terms of a Quote, the terms specifically set forth in these Terms and Conditions shall control, except to the extent the parties expressly provide otherwise in the Quote.
11.2 Subcontracting. SeqCoast may subcontract any portion of the Services.
11.3 Independent Contractor. SeqCoast shall perform the Services as an independent contractor of Customer and shall have complete and exclusive control over the SeqCoast facilities and its equipment, employees and agents. Nothing in the Agreement, any attachment hereto nor any other written agreements made pursuant hereto shall constitute SeqCoast, or anyone furnished or used by SeqCoast in the performance of the Services hereunder, an employee, joint venturer, partner or servant of Customer.
11.4 Force Majeure. Except for payment obligations, each party shall be excused from performing its respective obligations under the Agreement, any attachments hereto or any other written agreements made pursuant hereto, if such party’s performance is delayed or prevented by any event beyond such party’s reasonable control, including, without limitation, acts of God, fire, explosion, weather, disease, pandemic, war, insurrection, civil strife, riots, or government action; provided, however, that such performance shall be excused only to the extent of and during such disability. Any time specified for completion of performance in a Quote falling due during or subsequent to the occurrence of any such event shall be automatically extended for a period of time reasonable under all the circumstances to recover from such disability, as determined in the sole discretion of the disabled party. SeqCoast will promptly notify Customer if, by reason of any of the events referred to herein, SeqCoast is unable to meet any such time for performance specified in a Quote.
11.5 Non-Waiver. The failure of either party in any one or more instances to insist upon strict performance of any of the terms and conditions of the Agreement shall not be construed as a waiver or relinquishment, to any extent, of the right to assert or rely upon any such terms or conditions on any future occasion.
11.6 Severability. In the event any term of the Agreement is or becomes or is declared to be invalid or void by any court of competent jurisdiction and venue, such term or terms shall be null and void and shall be deemed deleted from the Agreement, and all the remaining terms of the Agreement shall remain in full force and effect.
11.7 Governing Law and Venue. The Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of New Hampshire including all matters of construction, validity, performance, and enforcement and without giving effect to the principles of conflict of laws. Any action brought by any party hereto shall be brought within the state of New Hampshire of competent jurisdiction located in Rockingham County, New Hampshire.
11.8 Assignment. Neither the Agreement or any Quote, nor the rights or obligations arising hereunder and thereunder may be assigned or transferred by Customer without SeqCoast’s prior written consent. Subject to the restrictions contained in the preceding sentence, the Agreement shall be binding upon the successors and assigns of the parties.
11.9 Entire Agreement. These Terms and Conditions, together with all attachments hereto and any Quote or other written agreements executed by the parties pursuant hereto, represent the entire understanding between the parties with respect to the subject matter hereof and thereof.
11.10 Amendments. No amendment of any provision of the Agreement or any Quote or attachment thereto or any other writing executed in connection herewith shall be valid unless the same shall be in writing and signed by the parties hereto.
11.11 Headings. The section headings or other captions contained in these Terms and Conditions are inserted for convenience of reference only and shall not affect in any way the meaning or interpretation of the provisions of these Terms and Conditions.
11.12 Survival. Each Section that, by its terms, contemplates performance or obligations following the termination of the Agreement shall so survive including Section 5. Intellectual Property Rights, Section 7. Confidentiality, Section 9. Limitation of Liability and Disclaimer of Warranties and Section 11. Miscellaneous.4