The following standard terms and conditions (the “Terms and Conditions”) shall form an integral part of the agreement between Ion Dx Inc. and the Client.
The following terms shall have the following meanings. All capitalized terms not otherwise set out in this section shall have the meaning as set out in the section of the Agreement in which they are defined.
(a) “Affiliate” means, with respect to any party to this Agreement, any person, partnership, joint venture, corporation or other entity which directly or indirectly controls, is controlled by, or is under common control with such party where “control” (or variants of it) means the ability to direct the affairs of another by means of ownership, contract or otherwise.
(b) “Agreement” or “Statement of Work” or “SOW” means each Statement of Work entered into between Ion Dx and the Client, including any changes and modifications, that describes the Services and/or Deliverables to be provided by Ion Dx to the Client and which references or incorporates these Terms and Conditions, or to which these Terms and Conditions are attached.
(c) “Business Day” means any day except Saturdays, Sundays or statutory holidays in California.
(d) “Deliverables” means all products that are made, conceived, developed, or delivered to the Client by Ion Dx, either alone or jointly with others, in connection with the provision of the Services and includes all results of Ion Dx’s work pursuant to each SOW, in each case regardless of the form or format or of how such Deliverables are communicated or provided to the Client.
(e) “Fees” means the fees payable by the Client to Ion Dx for the Services and / or the Deliverables, plus all duties, levies, and taxes in association with such fees.
(f) “Intellectual Property” means all systems, applications, software code (in any form, including source code, executable or object code), algorithms, tool-kits, technology, widgets, formulae, programs, concepts, work-arounds, databases, designs, diagrams, documentation, drawings, charts, ideas, inventions (whether or not such inventions are patentable), know-how, trademarks (whether registered or not), brand names, logos, slogans, methods, techniques, models, procedures, and processes.
(g) “Intellectual Property Rights” means all: (a) copyrights, (b) moral rights, (c) rights associated with works of authorship, (d) trademark rights, (e) trade name rights, (f) trade secret rights, (g) patent and industrial property rights (whether registered or not), and (h) other proprietary rights, in Intellectual Property.
(j) “Ion Dx” or “IonDx” means Ion Dx Inc.
(i) “Materials” shall mean materials, samples, compounds, research models or any other tangible items provided to Service Provider by or on behalf of Requester in order to perform the Services.
3 Statements of Work and Provision of Services
Provision of Services. Ion Dx shall provide the Services to the Client in accordance with these Terms and Conditions and the applicable SOW.
Statements of Work. Each SOW:
(a) will be in writing, signed by Ion Dx and the Client and will attach and incorporate by reference these Terms and Conditions;
(b) will identify the nature and scope of the Services;
(c) will set forth the cost, estimated cost, or budget of the Services; and
(d) may set out further particulars as to the provision of the Services including, without limitation:
(i) any changes to these Terms and Conditions;
(ii) the estimated: start date, end date, and duration for the provision of Services; (iii) an allocation of the budget to specific projects or Deliverables within the provision of the Services; and
(iv) any terms in respect of warranty, follow-up, training, or troubleshooting.
3.3 Location and Travel. Unless otherwise set out in the SOW:
(a) Ion Dx may, at Ion Dx’s sole discretion, provide the Services remotely or on-site at the Client’s premises, or both; and
4 Workflow and Access
Client’s Obligations. Successful completion of the Services depends on the full commitment and participation of the Client. Ion Dx’s performance of the Services is predicated on the following responsibilities being managed and fulfilled by the Client, at no charge to Ion Dx. The Client will:
(a) Take reasonable steps to ensure that all Client personnel participating in the implementation of the Services are knowledgeable about the fundamentals of the Services being provided;
(b) Appoint a representative to supervise and coordinate the Client’s performance of its obligations under the SOW. The representative will coordinate with Ion Dx in a professional and prompt manner and will have the necessary expertise and authority to act on behalf of the Client;
(c) Provide Ion Dx with access to the Client’s samples, data and documentation, as may reasonably be required by Ion Dx to facilitate the provision of the Services;
(d) Provide Ion Dx with access to necessary personnel, as may reasonably be required by Ion Dx;
(e) Provide appropriate direction, as requested by Ion Dx; and
(f) Perform appropriate and timely testing as reasonably required by Ion Dx.
Ion Dx’s Obligations. Ion Dx will provide the Services and Deliverables to the Client in accordance with best practices as determined by Ion Dx, acting reasonably and in accordance with industry standards. Ion Dx will determine the methods, details, and means of performing the Services, except as may be specifically identified in the SOW. Ion Dx will use reasonable best efforts to perform the Services and provide the Deliverables by the dates set out in the SOW, it being expressly agreed that there may be delays beyond Ion Dx’s reasonable control, and in such a case, unless expressly set out in the applicable SOW, such delays shall not constitute a default by Ion Dx in the provision of the Services.
Client Delays. In the event of any delays in the provision of the Services or the Deliverables or any part thereof that are attributable to the Client (“Client Delays”), as determined by Ion Dx in its discretion, acting reasonably, Ion Dx may:
(a) invoice the Client for Fees for Services provided to the Client to the date of such Client Delays;
(b) change its resource team allocated to the Services in order to meet its own business demands, provided that Ion Dx will provide qualified individuals who are capable of continuing the Services in accordance with their specifications; and
5 Payment Terms
5.1 Terms of Payment.
The Client will pay to Ion Dx all Fees in accordance with the payment terms as set out in these Terms and Conditions or the applicable SOW. Unless otherwise provided in the SOW, Ion Dx will invoice the Client periodically and the Client will pay the Fees in respect of such invoice within thirty days of the date of such invoice. All outstanding amounts owing on account of Fees will incur interest at a rate of 1.5% per month, calculated monthly (or if such interest rate is not permitted by applicable law, then the maximum interest rate permitted by applicable law), until such time as they are paid in full.
Fees for the Services and Deliverables shall be specified, or calculable in the SOW or, if not in such SOW, in a rate sheet to be attached to the SOW, which will be incorporated into the SOW. Any changes to Fees or rates shall be specified in writing and must be agreed to by both parties, in advance, and, once approved, shall constitute a Change Order.
In the event either Ion Dx or the Client requires a material change to the scope of work, the timeline, the Services, the Deliverables, or the Fees, or in the event Fees are based on an estimate and the estimate of such Fees materially changes, the party requesting such change shall communicate such change to the other party, in writing, and will provide the other party with a reasonable opportunity to assess the impact of such changes. If the Parties agree to such changes, such acceptance will be evidenced in writing and will be incorporated into the applicable SOW.
In order to effect such change, the parties must agree to all such changes by way of a written change order (each, a “Change Order”). Each Change Order will describe in detail:
(a) the sections of the SOW affected; and
(b) the changes made to the Services, Fees, rates, budget, schedule, and Deliverables.
Neither party will be required to agree to any changes that materially change the Services or have a material impact on the business of the party.
7 Material Transfer
10 Intellectual Property
All Intellectual Property contained in the Deliverables or made available or disclosed to the Client, as part of the Services under the SOW or otherwise or that is contained in past deliverables or services provided by Ion Dx to the Client (collectively, “Ion Dx Intellectual Property”), and all Intellectual Property Rights in Ion Dx Intellectual Property are and shall remain the sole and exclusive property of Ion Dx and the Client is granted no right, title, or interest in the Ion Dx Intellectual Property.
No ownership or license in any Ion Dx Intellectual Property shall be granted to the Client and, for greater certainty, but without limitation, the Client shall not be granted any rights to license, sub-license, sell, assign, transfer, or grant the Ion Dx Intellectual Property to any third parties without the prior express written consent of Ion Dx.
11 Confidential Information
For the purposes of this Agreement, “Confidential Information” means any information that is disclosed by one party (the “ Disclosing Party”) to the other party (the “Receiving Party”) in the course of Ion Dx providing the Services to the Client and that a reasonable person would consider to be confidential in the circumstances. Confidential Information includes, but is not limited to, the parties’ business information, customer information, trade secrets, the terms of each SOW, and personal information of the parties’ employees, contractors and customers. Confidential Information does not include any information that is disclosed by one party to another party if that information: (a) is at the time of disclosure in the possession of the Receiving Party or any of its Affiliates and was obtained without an obligation of confidence; (b) is independently developed by the Receiving Party or any of its Affiliates without any use of or reference to the Confidential Information; (c) is or becomes publicly available without breach of any obligation of confidence; (d) is acquired by the Receiving Party from a third party who provided the information without breaking any express or implied obligations or duties to the Disclosing Party; or (e) is intentionally released for disclosure by the Disclosing Party or with the Disclosing Party’s prior written consent.
Each of Ion Dx and the Client agree with the other that it shall:
(a) take all reasonable steps to maintain the confidentiality of the other party’s Confidential Information;
(b) not copy the Confidential Information except as may reasonably be required by Ion Dx in the provision of the Services;
(c) not use the Confidential Information on its own behalf;
(d) safeguard all documents containing Confidential Information against theft, damage or access by unauthorized persons;
(e) use the same degree of care with respect to the Confidential Information as it employs with respect to its own proprietary or confidential information of like importance; and
(f) except as required by law or a valid court order, and subject to the Receiving Party informing the Disclosing Party of such legal requirement, the Receiving Party will only disclose such Confidential Information to those employees or agents who need to know in order to perform their obligations under the SOW. The Receiving Party will ensure that those people who need to know the Confidential Information agree to maintain the confidentiality of such Confidential Information on terms no less stringent than the terms of these confidentiality provisions.
12 Term and Termination
Either party may immediately terminate the provision of the Services if the other party:
(a) is in breach of its confidentiality obligations under these Terms and Conditions;
(b) is or becomes insolvent or bankrupt, becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law, has a receiver, administrator or manager appointed, makes an assignment for the benefit of creditors or takes the benefit of any applicable law or statute in force for the winding up or liquidation of corporations; or
(c) is in material breach of these Terms and Conditions (including, without limitation, failure to pay the Fees) and such breach has not been cured within
thirty (30) days of the provision of notice of such breach to the breaching party.
Upon termination of the Services under the SOW, each party will immediately, upon request from the other party, return to the other party all Confidential Information of the other party in its possession or control.
14 Force Majeure
The headings used in the SOW and these Terms and Conditions are for convenience and reference only and shall not affect the construction or interpretation of the SOW or these Terms and Conditions. The term “this part” when used herein shall mean the entire part, including sections and subsections within that part, unless inconsistent with the context of such use.
Except where otherwise expressly provided, all monetary amounts in this Agreement are stated and shall be paid in United States currency.
15.3 Relationship of the Parties.
The parties are independent contractors. The Agreement shall not be construed as creating any partnership, joint venture, or agency among the parties and no party shall be deemed to be the legal representative of any other party for the purposes of the Agreement. No party shall have and shall not represent itself as having, any authority to act for, to undertake any obligation on behalf of any other party, except as expressly provided in the Agreement.
15.4 Gender, Plural and Singular.
In the Agreement, unless the context otherwise requires, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa, “or” is not exclusive” and “including” is not limiting, whether or not such non-limiting language (such as “without limitation” or “but not limited to”) is used with reference to it, and modifications to the provisions of the Agreement may be made accordingly as the context requires.
No alteration or amendment to the Agreement shall take effect unless it is in writing duly executed by each of the parties.
15.6 Proper Law of Agreement.
The Agreement shall be governed by and construed in accordance with the laws of the State of California and the laws of The United States applicable therein, and the parties agree to attorn to the exclusive jurisdiction of California.
The invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of any other provision and any such invalid or unenforceable provision shall be deemed to be severable.
15.8 Time of the Essence.
Time shall be of the essence of the Agreement.
Any notice, payment or other communication required or permitted to be given or served pursuant to this Agreement shall be in writing and shall be delivered personally or forwarded by registered mail to the party concerned at the address specified on page one of the SOW to which these Terms and Conditions pertain, or to any other address as may from time to time be notified in writing by any of the parties. Any notice, payment or other communication shall be deemed to have been given on the day delivered, if delivered by hand, and within four Business Days following the date of posting, if mailed; provided that if there shall be at the time or within four Business Days of mailing a mail strike, slow-down or other labour dispute that might affect delivery by mail, then the notice, payment or other communication shall be effective only when actually delivered.
Entire Agreement. The provisions of the Agreement (specifically, the SOW and these Terms and Conditions) constitute the entire agreement between the parties and supersede all previous communications, representations and agreements, whether oral or written, between the parties with respect to the subject matter hereof.
No Strict Construction. The language in all parts of the Agreement shall in all cases be construed as a whole and neither strictly for not strictly against any of the Parties to the Agreement.
Enurement. The Agreement shall enure to the benefit of and be binding upon the parties and, except as otherwise provided or as would be inconsistent with the provisions of the Agreement, their respective heirs, executors, administrators, successors and permitted assigns.
Counterparts. The Agreement may be signed by the parties in as many counterparts as may be necessary, each of which so signed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument. The Agreement may be executed and delivered by facsimile or electronic mail. An executed copy of the Agreement delivered by facsimile or electronic mail will constitute valid execution and delivery.