1. Governing Provisions. THOROUGHBRED DIAGNOSTICS (“THOROUGHBRED DIAGNOSTICS”) that is processing this order for purchase of services (the “Services”) agrees to provide to Client certain services identified and agreed upon by the parties expressly conditional on Client’s assent to the terms and conditions contained herein. Client agrees that the terms of Client’s purchase order or any other document supplied by Client to THOROUGHBRED DIAGNOSTICS shall not be of any force or effect, except to the extent THOROUGHBRED DIAGNOSTICS agrees in writing thereto. These Terms and Conditions, including all writings incorporated herein by reference, any quotation issued to Client by THOROUGHBRED DIAGNOSTICS, and those specific terms of a purchase order or other document (eg. a work order) that are either consistent with these conditions or expressly agreed upon by THOROUGHBRED DIAGNOSTICS in writing, constitute the entire contract between the Client and THOROUGHBRED DIAGNOSTICS (the “Services Agreement”), and supersede all prior agreements and understandings between the parties, whether written or oral, relating to the subject matter hereof. In the event of a conflict, a quotation takes precedence over the Terms and Conditions, and a written contract signed by both parties takes precedence over either. If one or more of these Terms and Conditions are held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining Terms and Conditions shall be unimpaired. For purposes of the Services Agreement, “Deliverables” means (a) Data (defined below) generated by THOROUGHBRED DIAGNOSTICS as a direct result of the performance of the Service; and/or (b) materials made by THOROUGHBRED DIAGNOSTICS pursuant to the Services Agreement derived and/or made from Client Materials (defined below), and in each case as may be delivered to the Client.
2. Standard of Performance. All Services will be performed using due care in accordance with (a) the Services Agreement and (b) generally prevailing industry standards applicable to such Services. A good faith effort to start and complete all Services on time will be made, and Client will be notified if THOROUGHBRED DIAGNOSTICS determines that there are likely to be substantial delays. THOROUGHBRED DIAGNOSTICS expressively guarantees to perform all its procedures with professional diligence, and strives to perform quality work acceptable to all its Clients. Should quote proposal and study scope not align with Client’s expectations, it is the Client’s responsibility to notify CREATIVE DIAGNOSTICS in writing of any changes to this proposal prior to initiation of the project. THOROUGHBRED DIAGNOSTICS is only responsible for performing services as outlined in this quote, unless other agreed upon in writing by THOROUGHBRED DIAGNOSTICS and Client.
3. Changes. Changes to the Services Agreement must be in writing and signed by authorized representatives of THOROUGHBRED DIAGNOSTICS and Client. If such changes result in an increase in the cost of the Services or affect the projected completion date of the Services (or portions thereof), the fee and/or completion date(s) shall be adjusted to a degree commensurate with such changes. Cancellation of Services in progress will result in a partial charge commensurate with the percentage of work completed at the time of cancellation, in addition to any approved expenses not cancelable at the time of termination which are actually incurred prior to termination, or other termination or cancellation charges described in the Services Agreement.
4. Materials and Information. Client will provide THOROUGHBRED DIAGNOSTICS with sufficient amounts of Client’s information and materials such as cells, compounds, samples, or other substances needed to perform the Services (“Client Materials”), as well as comprehensive data or information concerning the stability, storage and safety requirements of such Client Materials needed by THOROUGHBRED DIAGNOSTICS to perform the Services. Unless otherwise agreed in writing, THOROUGHBRED DIAGNOSTICS will use Client Materials in accordance with the Services Agreement and only in the performance of Services for the benefit of the Client. Unless otherwise requested by the Client, upon completion of the Services any remaining Client Materials will be destroyed. THOROUGHBRED DIAGNOSTICS will not use the Client Materials, nor make chemical or genetic modification to the Client Materials, or attempt to determine the structure of Client Materials, except as may be agreed upon in a separate writing. THOROUGHBRED DIAGNOSTICS will not transfer or provide Client Materials, in whole or in part, to any third party, other than a subcontractor, without the Client’s prior written approval. THOROUGHBRED DIAGNOSTICS shall comply to the best of its knowledge in all material respects with all applicable laws and governmental rules and regulations which are applicable to its use of the Client Materials, and with any written safety precautions as provided by the Client and accepted by THOROUGHBRED DIAGNOSTICS.
5. Client’s Use of Antibodies or Products Containing Antibodies or Antibody-like Molecules. All THOROUGHBRED DIAGNOSTICS products containing antibodies including polyclonal antibodies, monoclonal antibodies from all species, recombinant monoclonal antibodies, single-domain antibodies, bi- or tri-specific antibodies, BiTEs, immunotoxins, therapeutic antibodies and proteins, hybridoma cell lines, biosimilars, stable cell lines, CAR, ELISAs, lateral flows, other kits and assays as well as antibody-like molecules, such as affibodies, scaffolds, monobodies, etc., are supplied for research use only.The Products are not intended for pharmaceutical development, diagnostic, therapeutic or any in vivo use.
The Client is strictly prohibited from using, sequencing or analyzing a product or a portion thereof to learn the respective design, construction, composition, operation or to reverse engineer, produce a copy or an improved version of the product or a functional similar material. In particular, the Client agrees that the sequences of antibodies in any CREATIVE DIAGNOSTICS products shall not be publicized in any occasions without written permission from THOROUGHBRED DIAGNOSTICS. The Client agrees not to transfer the products [including the sequences of any part] to any third party in any form and method without the prior written permission of the THOROUGHBRED DIAGNOSTICS.
The Client is solely liable to ensure compliance with any regulatory requirements related to the Client’s use of Products. If the product is to be used in a clinical setting for the purpose of patient screening or monitoring of a therapeutic product or drug, a Clinical Monitoring License is required. If the product is used as a component in an in vitro diagnostic (IVD) assay and the IVD assay becomes FDA approved, CE marked or other equivalent diagnostic approval, an In Vitro Diagnostic License is required.
The Products may not be resold, modified for resale or used to manufacture commercial products without prior written approval from CREATIVE DIAGNOSTICS.
6. Intellectual Property. Except as set forth otherwise in the Services Agreement, Client shall be the exclusive owner of and shall have title to all documentation, information, records, specimens or other work product supplied by Client and/or generated by THOROUGHBRED DIAGNOSTICS as a direct result of the performance of the Services (“Data”). Unless otherwise agreed in writing, THOROUGHBRED DIAGNOSTICS will use Data in accordance with the Services Agreement and only in the performance of Services for the benefit of the Client. Upon completion of the Services THOROUGHBRED DIAGNOSTICS will maintain a file of the Data for a period of no less than one (1) year. THOROUGHBRED DIAGNOSTICS and Client shall agree that all pre-existing intellectual property remains the property and either party shall have no right or license to it (“Background IP”). Nothing herein shall be regarded as an express or implied transfer or license of a party’s Background IP. THOROUGHBRED DIAGNOSTICS is the sole and exclusive owner of all right, title and interest in and to all intellectual property claiming or covering THOROUGHBRED DIAGNOSTICS technology.
7. Confidentiality. During performance of the Services and for three (3) years thereafter, THOROUGHBRED DIAGNOSTICS will treat all Data as proprietary and confidential and will not disclose the same to any person except its employees, consultants, and subcontractors to whom it is necessary to disclose the Data for purposes of providing the Services. THOROUGHBRED DIAGNOSTICS shall protect the Data by using the same degree of care as THOROUGHBRED DIAGNOSTICS uses to protect its own confidential information, but in any event no less than a reasonable degree of care. Notwithstanding any other provisions herein, THOROUGHBRED DIAGNOSTICS shall have no liability or obligation to Client for, nor be in any way restricted in, its disclosure or use of any Data which (a) is already known to THOROUGHBRED DIAGNOSTICS without obligation of confidentiality to Client; (b) is or becomes publicly known by any means other than wrongful act of THOROUGHBRED DIAGNOSTICS; (c) is received from a third party without such party’s breach of obligation of confidentiality to Client; (d) is disclosed pursuant to an enforceable order of a court or administrative agency; and/or (e) is independently developed by or for THOROUGHBRED DIAGNOSTICS. Client acknowledges that, notwithstanding anything to the contrary herein, THOROUGHBRED DIAGNOSTICS shall be free to disclose Data, provided that in so doing THOROUGHBRED DIAGNOSTICS never attributes or otherwise associates any such data with Client.
8. Payments. The Client shall pay THOROUGHBRED DIAGNOSTICS according to THOROUGHBRED DIAGNOSTICS invoice(s). THOROUGHBRED DIAGNOSTICS shall invoice the client following payment schedules described in the quotation. The payment terms is 30 days, otherwise differently requested in the invoice. All payments due hereunder shall be made in the currency specified by THOROUGHBRED DIAGNOSTICS in writing. If Client defaults in any payment when due, THOROUGHBRED DIAGNOSTICS, at its option and without prejudice to its other lawful remedies, may delay performance, defer delivery, charge interest on undisputed amounts owed, and/or terminate the Services Agreement. If payment is not received by the due date, a service charge will be added at the rate of 1.5% per month (18% per year) or the maximum legal rate, whichever is less, to unpaid invoices from the due date hereof. If THOROUGHBRED DIAGNOSTICS is compelled to bring suit to collect amounts due hereunder, it shall also be entitled to recover interest on amounts due as provided by law and reasonable attorney fees and costs of suit incurred in connection with the action. Client’s acceptance of delivery of any Service based on this Service Agreement shall constitute a representation that Client is solvent.
9. Indemnity. The Client shall defend and indemnify THOROUGHBRED DIAGNOSTICS and its affiliates, directors, officers, employees, representatives, consultants, agents and service providers (collectively, the “Company Indemnified Parties”), against any and all costs, damages, expenses (including reasonable legal fees) and losses suffered by any Company Indemnified Party in connection with any third party action, assessment, claim, demand, proceeding or suit to the extent arising or resulting from (a) the Client’s negligence or willful misconduct; (b) the Client’s breach of this Agreement; or (c) THOROUGHBRED DIAGNOSTICS use, or alleged use, in the performance of the Services in the conduct of the Project, of any Client Background Intellectual Property, Client Provided Materials or Client Provided Material Information licensed or provided by the Client to THOROUGHBRED DIAGNOSTICS for the purpose of performing the Services in the conduct of the Project.
10. Limited Warranty. The Services Agreement (Quote) is a contract for services. THOROUGHBRED DIAGNOSTICS sole warranty with respect to the Services is that THOROUGHBRED DIAGNOSTICS will perform all Services in accordance with the standard of performance set forth in Section 2 above. Client shall notify THOROUGHBRED DIAGNOSTICS in writing of any claim for a breach of such warranty by THOROUGHBRED DIAGNOSTICS within one (1) month after delivery by THOROUGHBRED DIAGNOSTICS of the last-to-deliver Deliverable relating to such Services. The sole remedy of Client for breach of such warranty shall be to require THOROUGHBRED DIAGNOSTICS to re-perform the Services (or such portion thereof as may reasonably be required to be re-performed), and, in such event THOROUGHBRED DIAGNOSTICS shall diligently pursue the re-performance of the Services or portions thereof until completion, or, if THOROUGHBRED DIAGNOSTICS cannot re-perform the Services (or such portion) in accordance with this limited warranty, then it shall refund amounts paid by the Client for the applicable Service giving rise to the breach of warranty.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THOROUGHBRED DIAGNOSTICS BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY OR WARRANTY OF ANY KIND) AS A RESULT OF THOROUGHBRED DIAGNOSTICS FAILURE TO PERFORM THE SERVICES IN ACCORDANCE WITH THIS WARRANTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, EVEN IF THOROUGHBRED DIAGNOSTICS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY SET FORTH IN THIS SECTION IS IN LIEU OF ANY AND ALL OTHER WARRANTIES RELATING TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION, OR THAT THE USE OR SALE OF DELIVERABLES OR INFORMATION PROVIDED HEREUNDER WILL NOT INFRINGE OR MISAPPROPRIATE ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THOROUGHBRED DIAGNOSTICS LIABILITY TO CLIENT FOR BREACH OF ANY TERMS AND CONDITIONS OF THE SERVICES AGREEMENT (OTHER THAN ANY BREACH OF THE WARRANTY CONTAINED IN THIS SECTION IN RESPECT OF WHICH ANY LIABILITY SHALL BE LIMITED TO RE-PERFORMANCE OR REFUND AS SPECIFIED HEREIN) SHALL BE LIMITED TO DAMAGES (OTHER THAN INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES) IN AN AMOUNT NOT TO EXCEED THE FEE PAID OR TO BE PAID BY CLIENT TO THOROUGHBRED DIAGNOSTICS IN CONNECTION WITH THE SERVICES.
11. Termination. THOROUGHBRED DIAGNOSTICS may terminate the Services Agreement in the event that (a) the Client breaches or fails to comply with any material provision of the Services Agreement and, where the breach or failure is capable of being remedied, fails to remedy the breach or failure to the satisfaction of THOROUGHBRED DIAGNOSTICS within fifteen (15) days of receiving written notice thereof; (b) in the event THOROUGHBRED DIAGNOSTICS has agreed to procure from a third party non-standard or custom Client Materials specifically for use in the performance of Services and THOROUGHBRED DIAGNOSTICS is unable to reach agreement with such third party on the terms and conditions of such procurement, or the third party is unwilling or unable to provide the Client Materials for reasons beyond THOROUGHBRED DIAGNOSTICS reasonable control; or (c) in the event that any of the following actions occur in relation to the Client: an order is made for the winding up of the Client; a receiver or receiver and manager of any property of the Client is appointed; a provisional liquidator of the Client is appointed; the Client is or is deemed by law to be unable to pay its debts; the Client makes any arrangement or compromise with its creditors or members or with any class of its members or creditors; and/or the Client ceases to carry on its business in the areas necessary for the performance of its obligations under the Services Agreement.
12. Choice of Law and Jurisdiction. This Quotation shall be governed by and construed in accordance with the laws of the State of NY, U.S.A. Any litigation or other dispute resolution between the parties relating to this Quotation shall take place in the U.S. District Court where THOROUGHBRED DIAGNOSTICS is registered. The parties consent to the personal jurisdiction of and venue in the state and federal courts within the State of NY.
13. Returned Products and Claims. Within seven (7) business days after customer’s receipt of products sold, Customer must inspect the Products and give detailed written notice to THOROUGHBRED DIAGNOSTICS of any claim by Customer based upon the condition, quantity, or identity of the Products received or of any visible nonconformity with THOROUGHBRED DIAGNOSTICS applicable specifications. If requested by THOROUGHBRED DIAGNOSTICS, Customer shall make available for inspection by THOROUGHBRED DIAGNOSTICS as to which a claim has been asserted by Customer. Customer’s failure to make such claim shall constitute irrevocable acceptance of the Products delivered. Products sold that are determined to be damaged, defective or non-conforming shall not be returned without THOROUGHBRED DIAGNOSTICS prior written consent and transportation charges for return shall not be paid by THOROUGHBRED DIAGNOSTICS unless authorized in advance.
14. Cancellation/Changes. Customer may not cancel or change an order once placed with THOROUGHBRED DIAGNOSTICS except with the prior written consent of THOROUGHBRED DIAGNOSTICS and upon terms that will indemnify THOROUGHBRED DIAGNOSTICS against any loss resulting from such change or cancellation. All orders and Products are subject to changes as may be required to comply with applicable laws. If Customer cancel the order while the order is already shipped by THOROUGHBRED DIAGNOSTICS, should pay at least 30% restocking fee (30% of order value).
15. Refund. Customer acknowledges the uncertain nature of the product itself and the services that THOROUGHBRED DIAGNOSTICS may provide. In the event that any product does not meet the performance standards stated in the product specification, if any, or THOROUGHBRED DIAGNOSTICS fails to perform the service resulting from circumstances beyond its reasonable control, THOROUGHBRED DIAGNOSTICS will refund customer the original price paid to THOROUGHBRED DIAGNOSTICS. Customer shall not claim any direct, indirect, or consequential loss or damage arising out of or in connection with THOROUGHBRED DIAGNOSTICS failure to provide the products or perform the services. THOROUGHBRED DIAGNOSTICS shall have no liability for any direct, indirect, consequential or incidental damages arising out of the use, the results of use or the inability to use any product.
Thoroughbred Diagnostics, was founded in 2015 with the purpose to provide world class diagnostic services, quickly and accurately, to the providers of our Commonwealth and the surrounding area.
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