TERMS AND CONDITIONS
a. Subject to these terms and conditions, Transcriptic will use commercially reasonable efforts to (a) provide the Services ordered by Customer (and accepted by Transcriptic) via Transcriptic’s website, quotation, or statement of work in accordance with the Protocol (defined below) and (b) deliver the Resulting Deliverables as specified in such order. The order so submitted and accepted is the “Order.” The "Protocol" means the Services configurations and specifications specified by Customer in the process of so ordering Services. The materials resulting from the Services that are to be shipped to the Customer are the "Resulting Deliverables." The Order shall be considered part of and subject to this Agreement.
a. Customer will provide Transcriptic with sufficient amount of its information, materials, compounds, substances, samples, devices and protocols needed to complete the Services (“Customer Materials”), as well as comprehensive data or information concerning the stability, storage, health and safety information of Customer material needed by Transcriptic to complete the Services.
b. Customer will not send Transcriptic any known or suspected bio-hazardous, radioactive, poisonous, or other contaminant that may be present in the sample and poses a risk to Transcriptic personal.
c. Customer must ensure, and hereby warrants, that no sample poses any danger, during transportation, in the laboratory or otherwise to Transcriptic premises, instruments, personnel, representatives, or other customers’ products, unless prior written agreement between customer and Transcriptic has been executed.
d. Customer will provide Transcriptic with complete and accurate data to apprise Transcriptic of the identity, strength, purity, stability, composition or other characteristics, and safe handling requirements of the Customer Material, including Material Safety Data Sheet or equivalent documentation. Failure to provide sufficient information for items mentioned could result in delay of execution of Services, denial or destruction of shipment.
e. Transcriptic claims no responsibility for any loss or damage of Customer Material while in transit.
f. Unless otherwise requested by Customer and agreed to by Transcriptic in writing, upon completion of the Services or 90-day inactive use of any remaining Customer Material will be destroyed. Customer Material consumed or identified as “discard” in a Protocol during the execution of the Services will be destroyed after completion of such Protocol. Transcriptic reserves the right to transfer materials to third party service providers, if required, with or without prior written Customer approval as required to complete fulfillment of order.
g. If Customer Material requires special or extended term storage beyond the completion of the Services or 90-day inactive period, additional charges for storage will be assessed, and will be executed upon written agreement signed by Customer and Transcriptic. Payment for additional charges will be made by Customer.
h. Materials which are known to be perishable including but not limited to bacterial growth and agar plates and media may be discarded if beyond their useable life or contaminated as identified by Transcriptic without prior notice to Customer.
i. At the end of execution or project or 90-day inactive period, Transcriptic will contact Customer to prepare material for disposal as follows: a) return the Customer Materials to Customer at Customer’s expense; b) dispose of Customer Materials at Customer’s expense, c) extend storage of Customer Material at Customer’s expense. If Customer fails to provide guidance of disposition of Customer Material within 30 days of notification, Transcriptic will have the option to dispose or return Material to Customer at Customer’s expense.
a. Customer must ensure, and hereby warrants, that no data it uploads to the Services is considered sensitive information or violates the rights of any third party. TRANSCRIPTIC SHALL HAVE NO RESPONSIBILITY OR LIABILITY RELATED TO CUSTOMER’S FAILURE TO ENSURE THE FOREGOING.
b. Transcriptic will retain all electronic data supporting Customer’s projects for one year following the date of the final project run or for such shorter period as may be required by applicable law. At the end of such one-year period, Transcriptic will (at its sole discretion) (i) extend storage of the data at Customer’s expense, or (ii) dispose of the data.
c. It is Customer’s responsibility to ensure its data has been retrieved from the Services prior to deletion; provided that, Transcriptic will make reasonable efforts to contact Customer prior to deleting its data.
4. CUSTOMER REPRESENTATIONS AND COMMITMENTS
a. Customer is solely responsible for the Protocol, and the Services are being performed for, on behalf of and as specified by Customer in the Protocol. Accordingly, Customer represents, warrants and covenants: (a) that it has all rights and licenses necessary to perform the Protocol and produce, ship and use the Resulting Deliverables anywhere in the world and that such rights and licenses extend to the Transcriptic's activities hereunder; and (b) neither the Protocol or Resulting Deliverables nor the performance or production, shipment or use thereof by or on behalf of Transcriptic or Customer anywhere in the world do or will infringe or violated any right of any third party or any law or regulation of any country or authority or pose any danger or safety risk.
b. Customer will cooperate with Transcriptic in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Transcriptic may reasonably request. Customer will also cooperate with Transcriptic in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
c. In the Order, Customer has designated an employee as its “Primary Contact;” such primary contact will be responsible for all matters relating to this Agreement.
d. Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent. Customer shall immediately notify Transcriptic of any unauthorized uses of Customer’s account or any other known breaches of security.
e. Customer shall not describe or assign project names in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and Transcriptic may change or remove any description or project name that it considers inappropriate or unlawful, or otherwise likely to cause Transcriptic liability.
f. Transcriptic will not be liable for any acts or omissions by Customer, including any damages of any kind incurred as a result of such acts or omissions.
g. Customer will indemnify and hold harmless Transcriptic and its officers, directors, personnel, contractor, stockholders, affiliates and the like from all damages, settlements, costs, legal fees and other expenses in connection with any breach of the foregoing or any allegation inconsistent with Sections 2, 3, or 4.
a. Customer shall be the exclusive owner of all information, records, raw data, and specimens generated as a direct result of its use of the Services.
b. Unless otherwise expressly stated by Transcriptic in writing and subject to this Agreement, Customer's use of Protocols written in part or whole by Transcriptic confers upon Customers a non-exclusive, nontransferable right to use the Protocol(s) solely for Customer's internal or commercial purposes. Customer acknowledges that the use of the Protocols does not imply or transfer property rights of Protocols to Customers and property rights shall remain with Transcriptic.
a. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Confidential Information” of the Disclosing Party).
b. The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information without prior written consent from the Disclosing Party, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) totake the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.
c. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Transcriptic may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance.
7. PAYMENT OF FEES; SHIPPING
a. Customer shall pay Transcriptic all fees specified in the Order (the “Fees”). All payments will be made in accordance with the payment schedule and the method of payment specified in the Order. If not otherwise specified, payments will be due within thirty (30) days of invoice.
b. Shipping is FOB Transcriptic’s point of shipment, so in addition to such Fees, Customer will also pay any costs of shipping and all risk of loss will pass to Customer at the time of delivery to the shipper.
c. Late payments are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees.
d. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Transcriptic's net income) unless Customer has provided Transcriptic with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
a. In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period.
b. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, representations, indemnities, warranty disclaimers, and limitations of liability.
9. WARRANTY DISCLAIMERS
a. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE HEREUNDER, THE SERVICES, RESULTING DELIVERABLES, TRANSCRIPTIC CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY IMPLIED WARRANTIES OF ANY KIND. TRANSCRIPTIC HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
b. Transcriptic has not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which the Services link, and that link to the Services. Transcriptic does not have any control over those non-Transcriptic websites and webpages, and is not responsible for their contents or their use. By linking to a non-Transcriptic website or webpage, Transcriptic does not represent or imply that it endorses such website or webpage. TRANSCRIPTIC DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR USE OF NON-TRANSCRIPTIC WEBSITES AND WEBPAGES
10. LIMITATION OF LIABILITY
a. IN NO EVENT WILLTRANSCRIPTIC, ITS EXECUTIVES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, PROTOCOL, RESULTING DELIVERABLES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF TRANSCRIPTIC HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF TRANSCRIPTIC, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) FIVE THOUSAND DOLLARS, OR (ii) THE FEES PAID TO TRANSCRIPTIC HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
a. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
b. This Agreement is not assignable, transferable or sublicensable by Customer except with Transcriptic’s prior written consent. Transcriptic may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer.
c. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties.
d. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Transcriptic in any respect whatsoever.
e. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
f. Transcriptic will not be liable for any loss resulting from a cause over which it does not have direct control.
g. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws’ provisions. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc., and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided however, that each party will have a right to seek injunctive or other equitable relief in a court of law. The prevailing party will be entitled to receive from the nonprevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. Each party hereby consents to the arbitration in the State of California in the county of San Clara (in the English language).
h. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Transcriptic. Transcriptic is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.
i. Except with respect to the obligation to make payment, neither Transcriptic nor Customer shall be responsible for failure or delay in performance of any obligation related to the Services due to causes beyond its reasonable control, including but not limited to, acts of God, governmental actions, labor difficulty, shortages, civil or military authority, embargo, insurrection, war, transportation problems, interruptions of power or communications, failure of suppliers or natural disasters.