TERMS AND CONDITIONS

 

In the absence of any formal agreement, by placing an order with PROMAB Biotechnologies, Inc. and/or its subsidiaries and affiliates (“PROMAB”), the purchaser of services (“Customer”) accepts and agrees to be bound by all Terms and Conditions set forth herein. Customer cannot cancel or modify any Terms and Conditions once a project has commenced, without the prior written consent of PROMAB. PROMAB also has a Master Services Agreement template if a more extensive agreement is desired.

 

1.  General

PROMAB is a leading contract research organization (CRO) specializing in antibody and protein engineering, immune cell engineering, cell line development, and protein production.

 

The Terms and Conditions set forth herein and any Project Plans, schedule(s), attachment(s) and exhibit(s) agreed upon and executed by PROMAB and Customer shall govern the provision of all custom/contract research services ("Lab Services") by PROMAB to Customer. If there is a conflict between these Terms and Conditions and any other agreed upon materials, these Terms and Conditions shall govern unless the parties expressly in writing provide otherwise.

 

2.  Project Plan, Order and Lab Services

PROMAB will only commence rendering Lab Services upon receiving an “executed Order”, i.e.: signed Quote/Estimate and PO from the Customer. Once an Order is executed, it may not be cancelled without the written consent of PROMAB, and even if cancelled, all amounts due under an Order shall become immediately due and payable without regard to performance.

 

3.  Changes of Order and Lab Services

Once Lab Services are initiated, Customer cannot make changes to the Order or underlying Project Plan unless approved by PROMAB in writing. Customer agrees to pay for any potential increase in the cost and labor of the Lab Service and to accept the impact on the projected date of completion.

 

4.  Shipping

Loss and/or damage to product during shipping should be brought against the delivery server.

 

5.  Payments

Full payment is due net thirty (30) days from the date of the invoice(s). PROMAB may assess a late fee of 1.5% per month on all amounts not paid 30 days after delivery of product, unless otherwise stated on invoice. Full and complete payment of invoice is required for transfer of ownership of purchased product. Customer will pay any and all applicable customs, duties, and taxes. Customer agrees to pay collection expenses, including reasonable attorneys’ fees and court costs, if incurred in connection with collection activities.

 

6.  Transfer of Materials and Information

Customers will provide PROMAB with sufficient information and materials such as DNA sequences, constructs, cells, or other substances needed to complete the Lab Services, as well as related information ("Customer Materials"). Customer shall provide PROMAB with all relevant safety information for any chemical entities which Customer supplies to PROMAB, all material safety and data sheets (MSDS) for such entities, and any other information reasonably necessary for PROMAB to assess and apply the measures appropriate to ensure that such materials are properly handled, stored, used, shipped and disposed of. If PROMAB determines that it cannot safely handle a material or lacks sufficient information on which to base a determination that such material does not pose a risk to health or safety while in its possession, PROMAB may refuse to accept such material and shall be under no liability to Customer for such refusal. PROMAB may apply a surcharge for hazardous materials requiring containment and/or special engineering controls, and Customer agrees to pay such surcharge. Customer shall insure Customer Materials while at PROMAB’s facility. PROMAB agrees to use Customer Materials only in the execution of Lab Services for the benefit of the Customer.

Further, PROMAB will not transfer or provide Customer Materials, in whole or in part, to any third party, other than a subcontractor, without Customer's prior written approval.

 

7.  Limited Technical Information Disclosure

PROMAB may disclose to Customer information that PROMAB deems non-proprietary relating to certain designs, methods, and technologies used during the Lab Services. PROMAB has the independent right to decide if certain technical information shall be disclosed to Customer on a case-by-case basis. Under no circumstances shall it be assumed by Customer that an executed order for Lab Services, are rights to unlimited technical information and/or support at the conclusion of Lab Services. 

 

8.  Deliverables

Customer shall be the exclusive owner of all data, results, documentation, reports, samples or other work product generated by PROMAB as a result of the Lab Services in compliance with the Project Plan, except as provided in the following sentence ("Deliverables"). PROMAB is the exclusive owner of the method(s) or process(es) used in the execution of Lab Services, and laboratory notebooks or other records maintained with respect to the Lab Services.

 

9.  Inspections

Upon receipt of Deliverables, Customer will inspect the shipment promptly for damages, shortages, and correct identity of product. Any claims of non-conformity must be submitted to PROMAB within 7 days of shipment. If Customer fails to provide such claim within that period, the shipment will be deemed accepted by Customer. Non-conforming goods will be replaced or authorized for return and credit, at PROMAB’s option.

 

10.          Confidentiality

PROMAB will treat all Customer Materials and Deliverables as proprietary and confidential and will not disclose them to any person except its employees, consultants, and subcontractors to whom it is necessary to disclose for purposes of providing the Lab Services. Neither PROMAB nor Customer will disclose the terms of the relationship between the parties, including pricing, and neither will use the name or trademarks of the other without prior written consent.

 

11.  Limited Warranty

Customer represents and warrants that (a) Customer has the right to provide Customer Materials as provided in this Agreement, including without limitation the right to allow PROMAB to perform the Lab Services, (b) PROMAB’s use of the Customer Materials will not violate any contract, or applicable law or regulation, and (c) to Customer’s knowledge, the Customer Materials do not infringe on or violate any third-party intellectual property rights. PROMAB's sole warranty with respect to the Lab Service is that PROMAB will perform the Services in accordance with the material terms of the written Order. THE FOREGOING WARRANTY IS IN LIEU OF ANY AND ALL REPRESENTATIONS, RESULTS, AND WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OF ANY NATURE, WITH RESPECT TO THE LAB SERVICES, DELIVERABLES AND WORK PRODUCT, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. NOTWITHSTANDING ANY OTHER PROVISION HEREIN, AS THE RESULTS PURSUANT TO ANY PROJECT PLAN OR ORDER ARE INHERENTLY UNPREDICTABLE, PROMAB SPECIFICALLY DISCLAIMS THAT ANY PROJECT PLAN OR ORDER WILL BE SUCCESSFUL, IN WHOLE OR PART.

 

12.  Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROMAB (OR ITS SUBCONTRACTORS, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS) BE LIABLE UNDER ANY LEGAL THEORY AS A RESULT OF PROMAB'S PERFORMANCE OF THE LAB SERVICES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF CUSTOMERS, CLIENT OR GOODWILL. IN NO EVENT WILL PROMAB BE RESPONSIBLE OR LIABLE TO CUSTOMER FOR ANY AMOUNT OF ANY NATURE IN EXCESS OF THE COMPENSATION RECEIVED BY PROMAB IN CONNECTION WITH THE ORDER MOST CLOSELY ASSOCIATED WITH THE LOSS.

 

13.  Indemnification

Customer shall indemnify and hold harmless PROMAB, its subsidiaries and affiliates, and their respective officers, directors, employees, and agents from and against any and all expenses, damages, costs, judgments, and losses arising from any product or service based in whole or in part on Deliverables delivered hereunder or any portion thereof or from any Customer Materials. Customer shall secure and maintain in full force and effect throughout the performance of each Project Plan and for five (5) years thereafter appropriate liability insurance coverage, including but not limited to Workmen’s Compensation, General Liability, and Automobile Liability, in amounts appropriate to the conduct of Customer’s business.

 

 

14.  Termination

PROMAB may terminate the Lab Services in the event that Customer breaches or fails to comply with any material provision of these Terms and Conditions and fails to remedy the breach or failure to the satisfaction of PROMAB within fifteen (15) days of receiving written notice where the breach or failure is capable of being remedied. In the event of a change of control of PROMAB (whether by merger, sale of stock or assets), PROMAB may assign the Project Plan or Order to its successor in interest without prior consent of Customer.

 

15.  Force Majeure

Except with respect to the obligation to make payment, neither PROMAB nor Customer shall be responsible for failure or delay in performance of its obligations related to the Lab Services due to causes beyond its reasonable control, including but not limited to, acts of God, governmental

actions, fire, labor difficulty, shortages, civil disturbances, war, acts of terror, transportation problems, interruptions of power or communications, failure of suppliers or subcontractors, or natural disasters.

 

16.  Law

This Agreement shall be governed by the laws of the State of California, U.S.A., and the parties hereby submit to the jurisdiction of the California courts, both state and federal.