Science Exchange, Inc., Purchase Order Terms and Conditions

Updated: October 11, 2016


These terms and conditions (collectively the “Agreement”) are entered into between Science Exchange and Service Provider, effective as of the date of the Order and will govern Services being contracted with Science Exchange, Inc. (“Science Exchange”). Service Provider and Science Exchange may be referred to as (a “Party”) or collectively (the “Parties”). Science Exchange (who is an independent contractor of Requester) desires to purchase certain Services through the placement of Orders, and Service Provider desires to supply to Science Exchange such Services at such times and in such locations and amounts as Science Exchange may request. The Parties acknowledge and agree that Science Exchange intends to make such Services available to Requester through the Platform, and that Requester is intended to be the final purchaser of such Services. In the event that an existing Agreement is in place between the Service Provider and Science Exchange, such Agreement shall govern the relationship between the Parties and shall supersede this Agreement. Any terms and conditions proposed by Service Provider, which are different from or in addition to this Agreement, shall not be binding upon Science Exchange and shall be void and of no effect, except to the extent expressly accepted in writing by Science Exchange’s authorized representative.

1. Definitions.

1. “Applicable Laws” shall mean any country, federal, state, provincial, commonwealth, cantonal or local government law, statute, rule, requirement, code, regulation, permit, ordinance, authorization or similar such governmental requirement and interpretation and guidance documents of the same by a governmental authority as applicable to Service Provider.

2. “Audit for Cause” shall refer to any audit resulting from the following (I) suspected or actual serious persistent non-compliance with the Order, Service Provider’s policies and procedures, or any other guidance, (ii) suspected or actual failure to perform any of the services set forth in the Order, and (iii) suspected or actual fabrication, falsification, plagiarism, deception, or other practices that materially deviate from those that are commonly accepted within the scientific community for conducting or reporting research, with the exception of honest error.

3. "Change Order" shall mean any change to an Order with respect to the Statement of Work, Term, Deliverables, Fees, Service Provider or any other requirement.

4. “Confidential Information” shall mean any and all information including but not limited to financial information, know-how, intellectual property, plans, documents, marketing information, business and financial information, formulas, designs, calculations, facilities, reports, models, agreements, Quotes, Statement of Work, Request, Work Product, methods, inventions, discoveries, research concepts, and patents however recorded or preserved that is provided or disclosed via the Platform or by a Party (“Disclosing Party”) to the other (“Receiving Party”) in performance of an Order, in contemplation of an Order or by any other means whether in writing, orally, pictorially or through other tangible materials. Notwithstanding the foregoing, any information disclosed by or on behalf of Requester shall be considered Confidential Information.

5. “Deliverable(s)” shall mean any Work Product, report, material, data, images or as agreed upon in the applicable Order to be delivered to Requester by Service Provider at the conclusion of an Order.

6. “Fees” shall mean the total cost for performance of the Services by Service Provider.

7. “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.

8. “Order” shall mean a Quote for Services offered by Service Provider and accepted by Requester.

9. “Quote” shall mean a description of Services being offered by a Service Provider to a Requester via the Platform.

10. “Platform” shall mean Science Exchange Inc., a marketplace for scientific collaboration available at www.scienceexchange.com/products/marketplace, or Science Exchange’s concierge service at www.scienceexchange.com/products/concierge or by any other means as agreed upon by the Parties.

11. “Records” shall mean any and all records, accounts, files, books, receipts, third party invoices, time sheets, written policies and procedures, test results, records, reports, correspondence and memoranda as they pertain to this Agreement (including, but not limited to records related to standard operating procedures, system validation, time expended, tests performed, and materials procured, as applicable).

12. “Request” shall mean ordering a Quote for Services via Science Exchange’s Platform.

13. “Requester” shall mean the Party including its employees, directors and officers ordering Services via Science Exchange’s Platform.

14. “Representatives” shall mean any agent, subcontractor, consultant or any other party fulfilling a Party’s obligations hereunder.

15. “Service(s)” shall mean the scientific research services being offered and performed by Service Provider.

16. “Service Provider” shall mean the Party including its employees, directors and officers offering and providing Services via the Platform.

17. “Statement of Work” shall mean a detailed description of the specific Services to be completed by Service Provider including any pertinent information such as Fees, Deliverables, Term, protocols and payment schedules.

18. “Term” shall mean the time from receipt of Quote acceptance and if required, any Materials to completion of an Order including the submission of all required Deliverables.

19. “Work Product” shall mean all tangible material, or its intangible equivalent in unwritten or oral form, created directly or indirectly in connection with or arising out of an Order, Requester information (whether disclosed by or on behalf of Requester), or any of Service Provider’s obligations hereunder, including, without limitation, all patent, copyright, trademark, trade secret and other proprietary rights. Work Product may include without limitation all of the following, whether finished or unfinished: drafts, documents, writings, communications, plans, data, estimates, calculations, test results, specimens, schematics, drawings, tracings, studies, specifications, surveys, photographs, software programs, programs, reports, orders, maps, models, agreements and all derivative works thereof, ideas, concepts, discoveries, inventions, patents, know-how, negative know-how and improvements. For the avoidance of doubt, Deliverables shall also be considered Work Product.

2. Scope of Services.

Service Provider shall use its best efforts and assign properly trained, qualified and experienced personnel to perform the Services ethically, promptly and diligently as outlined in the applicable Order and in accordance with this Agreement and all Applicable Laws. Service Provider represents and warrants that (I) it has facilities, computer systems, equipment, data and record management, and physical security measures in place that are compliant with Applicable Laws and industry best practices to perform the Services outlined in the applicable Order, (II) it has procedures in place to ship and receive Materials, (III) it meets any and all safety regulations as required by Applicable Laws to perform the applicable Order including but not limited to OSHA, GLP, GCP, GCLP, GMP and CLIA regulations, (IV) it has the appropriate licenses and overview in place to perform the applicable Order including but not limited to AAALAC Accreditation, IACUC, and USDA license, (V) it has the right and authority to perform the Services contemplated under this Agreement, including with respect to any third party technology used to perform such Services, and (VI) the performance of its obligations hereunder do not violate any third party rights.

3. Service Contract.

3.1 Authority.

Service Provider agrees that it will abide by all terms of this Agreement and has the authority or has received approval from an authorized official of its institution to enter into this Agreement. Service Provider acknowledges and agrees that this contractual relationship is formed when Requester accepts a Quote for the Services being offered. In such an instance, the Service Provider agrees to perform the Order in accordance with the following: (I) this Agreement, (II) the Fees, (III) additional contractual provisions agreed upon by the Parties, and (IV) the Statement of Work accepted by both Requester and Service Provider, to the extent consistent with this Agreement (a “Service Contract”).

3.2 Non-Conforming Services.

In the event Services rendered by Service Provider do not meet the specifications as set forth in the applicable Order, at Requester’s option, Service Provider shall either (I) re-perform the non-conforming Services at its own cost within thirty (30) days after receiving notice from Requester of such non-conforming Services or (II) reimburse the Requester any amounts paid and compensate the Requester for the cost of Materials used in the performance of the Services.

3.3 Payments.

With respect to each Service Contract, Service Provider authorizes Science Exchange or Science Exchange’s third party payment processor to collect the Fees for an Order from the Requester on behalf of the Service Provider. Unless otherwise stated in the applicable Order, Science Exchange guarantees the payment of the applicable Fees to Service Provider’s indicated payment account within thirty (30) days of Requester’s indication on the Platform that such Order is complete and the Order was performed in compliance with this Agreement and any additional terms as set forth in the Order. If Science Exchange receives no communication from a Requester within two (2) weeks of the Service Providers indication that the Order is complete, Science Exchange may indicate Order complete and pay the Service Provider. Service Provider’s are solely responsible for all costs incurred in using the Platform, performing Orders and determining, collecting, reporting and paying all applicable state and federal sales, income and other taxes. After the commencement of an Order, should a Change Order be needed, such Change Order shall be documented and agreed to between the Service Provider and Requester (via the Science Exchange Platform). In such instance, Science Exchange on behalf of Requester shall ensure that each Change Order identifies all applicable changes. All payments shall be made in US Dollars at the agreed upon price stated in the Order, as issued by Science Exchange, regardless of any exchange rate.

4. Subcontract.

Service Provider shall not subcontract any portion of an Order without the express written consent of Requester and Science Exchange.

5. Debarment.

Service Provider represents and warrants that Service Provider and its Representatives have not been and are not debarred, suspended or otherwise excluded from performing an Order. Such exclusions include, but are not limited to the United States Generic Drug Enforcement Act of 1992 (21 U.S.C. § 335(a)), as amended, exclusions from participating in any United States federal or state health care program pursuant to United States 42 U.S.C. § 1320a-7, et seq., as amended, Sections 306(a) or (b) of the U.S. Federal Food, Drug & Cosmetic Act, or in each case pursuant to any other equivalent or successor statutes, rules or regulations. If the Service Provider becomes aware that it or any of its Representatives become debarred or is the subject of an investigation that could cause it to be debarred, it represents and warrants that it shall immediately notify Science Exchange and Requester in writing.

6. Confidentiality.

6.1 Standard of Care.

Receiving Party agrees, during the term of the Order and thereafter: (I) to maintain all Confidential Information in strict confidence, using at least the same standard of care that the Receiving Party uses in protecting its own Confidential Information of a similar nature, which in no event shall be less than reasonable care; (II) not to disclose Confidential Information of the Disclosing Party to any third party without first obtaining the Disclosing Party’s prior written consent to such disclosure; (III) in the case of Service Provider, not to use Confidential Information of Requester for any purpose except to perform the Order in accordance with this Agreement; (IV) to maintain reasonable security measures to protect the Disclosing Party’s Confidential Information against loss, theft or destruction; and (V) to return or (at the Disclosing Party’s direction) destroy all Confidential Information of the Disclosing Party (including the Materials or modified versions or derivatives thereof, in the event Service Provider is the returning Party) upon completion or abandonment of an Order or the earlier termination of this Agreement.

6.2 Exclusions.

Confidential Information will not include any information, to the extent the Receiving Party can evidence through written record: (I) is now or hereafter becomes generally known or available to the public through no act or omission on the part of the Receiving Party; (II) was in Receiving Party’s possession prior to receiving such materials or information from the Disclosing Party; (III) is rightfully acquired by the Receiving Party from a third party who did not obtain it directly or indirectly from a Party hereto and who has the right to disclose it to the Receiving Party; or (IV) is independently developed by the Receiving Party without access to any Confidential Information of the Disclosing Party. Notwithstanding the foregoing, as between the Parties, the following shall in any event be deemed the Requester’s Confidential Information: (I) the Materials (and any modified version and/or derivative thereof), (II) Work Product, Deliverables or Request (III) all information relating to the identity, characteristics, or other activity of Materials, the uses to which Materials have been or may be put, and all related information obtained by virtue of access to any Materials.

6.3 Disclosure.

A Party may disclose Confidential Information to its Representatives who have a bona fide need to know such Confidential Information in order to perform the Order in accordance with this Agreement, provided, however, that it has executed appropriate written agreements that are substantially similar to the Confidentiality provisions of this Agreement. Receiving Party will notify the Disclosing Party of any unauthorized transfer, disclosure, loss, or use of any Confidential Information of the Disclosing Party. If the Receiving Party is required or requested to disclose Confidential Information by judicial or administrative process, it shall promptly notify the Disclosing Party and allow the Disclosing Party a reasonable time and opportunity to oppose such process and/or seek a protective order. The Receiving Party shall disclose only the minimum Confidential Information required to be disclosed in order to comply, whether or not Disclosing Party obtains a protective order or other similar order. Notwithstanding anything in this Agreement to the contrary, Science Exchange and Requester shall have the right to disclose any Confidential Information to a regulatory agency to the extent required or requested by such agency in connection with any regulatory filing, inspection or otherwise.

6.4 Unauthorized use.

Receiving Party agrees that Disclosing Party may have the right to seek immediate equitable relief to enjoin any unauthorized use or disclosure of its Confidential Information, in addition to any other rights and remedies that it may have at law or otherwise. The Receiving Party understands and agrees that any unauthorized use or disclosure of the Disclosing Party’s Confidential Information shall constitute a breach of this Agreement. Such unauthorized use or disclosure will cause the Disclosing Party irreparable harm leaving it without sufficient legal remedy and in addition to all other remedies, shall entitle the Disclosing Party to seek injunctive relief.

6.5 Proprietary rights.

Receiving Party acknowledges and agrees that Disclosing Party retains all proprietary rights to the Confidential Information. Nothing in this Agreement shall be construed to grant any rights, express or implied, by license or otherwise, in or to any Confidential Information of Disclosing Party, or any Intellectual Property or proprietary rights of Disclosing Party, except as specified in this Agreement.

7. Intellectual Property.

7.1 Work Product.

Without limiting any other remedies available in law or equity, Service Provider agrees that anything resulting from an Order, including without limitation any and all intellectual property is Work Product. Service Provider acknowledges and agrees that all right, title and interest in to any Work Product shall be the sole property of Requester whether the Services to be performed are completed or not. Service Provider hereby assigns to Requester all of Service Provider's right, title and interest in the Work Product. Service Provider shall ensure that, at no cost to Requester, all of Service Provider’s Representatives that contribute to any Work Product have agreed in advance in writing that all right, title and interest in such contributions is assigned to Requester or Service Provider, and that they waive any droit moral or similar rights to object to modifications, adjustments or additions to their contributions. If any agreements with any of Service Provider’s Representatives provide such rights in and to Work Product to Service Provider rather than to Requester, Service Provider shall acquire all such rights in such Representatives’ contributions by operation of this provision. All Work Product and any reproductions thereof shall be surrendered to Requester by Service Provider upon completion of the related Order, or termination of an Order, whichever occurs first. Work Product may be used by Requester without restriction and may not be used by Service Provider or its Representatives, if any, without Requester’s prior written consent.

7.2 Cooperation.

Requester will have the sole right to determine the treatment of any Work Product, including with respect to intellectual property or proprietary rights therein, to file and execute patent applications, to use and disclose them, or to take any other action that Requester deems appropriate. Service Provider agrees to cooperate with and assist Requester during and after the term of this Agreement to apply for, and to execute any applications, assignments, or other documents reasonably necessary to obtain, protect, evidence, or enforce any intellectual property rights or other statutory protection for Work Product, as Requester deems appropriate.

7.3 License.

Service Provider agrees that if, in the course of performing the Services, Service Provider incorporates into any Work Product or utilizes in the performance of the Services any pre-existing invention, discovery, original works of authorship, development, improvements, trade secret, concept, or other proprietary information or intellectual property right owned by Service Provider or in which Service Provider has an interest (“Prior Inventions”), Service Provider hereby grants to Requester a nonexclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) under such Prior Inventions to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit the Work Product and Deliverables. Service Provider will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary information owned by any third party into any Work Product without Requester’s prior written authorization.

7.4 Science Exchange Platform.

Notwithstanding anything to the contrary, Science Exchange Inc. shall solely own all right, title and interest in and to the Platform and any improvements thereof, and all associated intellectual property rights.

8. Material Transfer.

8.1 To the extent that any Order provides that Requester supply Materials, Service Provider acknowledges and shall inform all personnel responsible for performing the Order or handling the Materials that to the extent Requester supplies such Materials: ALL SUCH MATERIALS ARE PROVIDED AS IS WITH NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. REQUESTER DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE, RESULTS OF THE USE OR APPROPRIATENESS OF THE USE OF THE MATERIAL IN ACCORDANCE WITH AN ORDER. REQUESTER DOES NOT WARRANT THAT USE OF ANY MATERIAL WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY RIGHTS OF ANY THIRD PARTY.

8.2 Service Provider represents and warrants that its Representatives will (I) use the Materials solely for performance of the corresponding Order as set forth in the applicable Order and not for any other purpose, (II) store, handle, use and maintain the Materials in accordance with the applicable Order, industry best practices and any Applicable Laws, and (III) not use the Materials for any experiments in human subjects, clinical trials, or diagnostic purposes involving human subjects.

8.3 Service Provider and its Representatives shall not (I) provide or describe the Materials to any third parties other than as necessary to perform the Order, (II) attempt to reverse engineer any of the Materials, (III) perform any studies to determine the structure, chemical composition, or other makeup of the Material; or (IV) make any derivatives or progeny of the Materials. The Materials are made available only for laboratory-testing purposes as expressly agreed in this Agreement and shall not be used in animals intended for food use. Upon the sooner to occur of (i) the completion of the applicable Order, (II) the expiration or termination of the applicable Order, or (III) the written request of Requester, Service Provider shall return any unused Materials to Requester or destroy Materials as directed by Requester.

8.4 All right, title, and interest to all Materials and any patent and intellectual property rights to all Materials shall remain in Requester. Nothing in this Agreement or any Order grants Service Provider or their Representatives, any rights in or to Materials, except the limited right to use such Materials or Requester Confidential Information as necessary to perform the corresponding Order as set forth in the applicable Order.

9. Records.

Service Provider shall prepare and maintain complete and accurate Records relating to the performance of this Agreement and all costs, liabilities and obligations incurred hereunder, including without limitation those relating to the Fees, until the expiration of five (5) years after completion of the applicable Order or such longer period as required by Applicable Laws. All Records and accounts relating to financial matters must be in a format consistent with Generally Accepted Accounting Practices. Prior to destroying Records relating to any Order, Service Provider shall give at least thirty (30) days’ prior written notice to Requester. If requested by Science Exchange or Requester, Service Provider shall continue to retain Records, provided that Science Exchange agrees to pay the reasonable costs of retention during such additional period, or at Requester's request and to the extent permitted by applicable laws, shall forward the Records to Requester. Should Service Provider fail to maintain such Records as required hereunder, Service Provider shall provide its good faith assistance and reimburse Science Exchange for its reasonable costs in recreating such Records. Requester and its representatives, may, upon request, but not more than once every six (6) months, during normal business hours and after reasonable advance notice by Requester, inspect Service Provider’s facilities for quality assurance purposes, and inspect, copy, and audit their Records. In the event of Audit for Cause, Requester and its Representatives (during normal business hours and reasonable prior notice to Service Provider) shall be allowed to inspect or audit Service Provider’s facilities. To the extent applicable, at either Party’s request, an exit meeting shall be held to discuss Requester’s audit findings. Requester shall provide Service Provider with a written report summarizing its findings and consequently, Service Provider shall provide Requester with a response to such findings, which shall include a plan for corrective and preventative actions designed to address reasonable concerns and shortcomings documented in the audit report. To the fullest extent possible, Service Provider shall endeavor to remedy such violations that relate to Service Provider’s compliance with the Order.

10. Inspection.

During the term of this Agreement, Requester shall be entitled to access Service Provider’s facilities where the Order is performed and Records are being stored. Service Provider shall give Requester access to items such as standard operating procedures, policies and procedures, laboratory notebooks or any other relevant information to evaluate the performance of the Order. Service Provider shall ensure that personnel able to address concerns are available during the visit. Service Provider agrees to notify Science Exchange and Requester within one business day after it receives notice of a pending inspection/audit from a regulatory agency such as the FDA, which relates to an Order or Service Provider’s ability to perform an Order and to provide to Science Exchange and Requester copies of any documents provided to any inspector or auditor. Service Provider will forward to Science Exchange and Requester any written communication received from the regulatory agency as a result of the inspection/audit within one (1) business day of receipt from such agency. Written communication may include any audit report or findings that could have a direct or indirect impact on Service Provider's ability to perform the Order regardless if such written communication is for a specific Order. Service Provider agrees to allow Science Exchange and Requester to assist in responding to any citation issued by a regulatory agency that relates to an Order and to cooperate with all reasonable requests of Science Exchange and Requester with respect to any such citation. Service Provider will give Science Exchange and Requester at least five (5) business days to review any response to a citation before it is forwarded to a regulatory agency. Service Provider shall respond to any citation within two (2) weeks of issuance or within any earlier deadline set by the issuing regulatory authority. In the event the FDA or other regulatory agency requests or requires any action to be taken, Service Provider will consult with Science Exchange and Requester, and will thereafter take, at Service Provider's cost and expense, such reasonable action as necessary to address the issues raised in any citation or inspection.

11. WARRANTY DISCLAIMER.

SCIENCE EXCHANGE MAKES NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY OR RELIABILITY OF ANY INFORMATION PROVIDED BY ANY PARTY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WHETHER ARISING OUT OF STATUTE, IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE, OR AS TO THE ACCURACY OF THE POSTINGS MADE ON THE PLATFORM BY ANY PARTY.

12. LIMITATION OF LIABILITY.

IN NO EVENT SHALL SCIENCE EXCHANGE INC., OR OUR LICENSORS OR THIRD-PARTIES BE LIABLE TO SERVICE PROVIDER OR ITS REPRESENTATIVES FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PLATFORM, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES, OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL REQUESTER OR ITS REPRESENTATIVES BE LIABLE TO SERVICE PROVIDER OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND (WHETHER DIRECT OR INDIRECT) ARISING OUT OF OR RELATED TO EXPERIMENTAL SERVICES OR SERVICE CONTRACTS ENTERED INTO WITH RESPECT TO EXPERIMENTAL SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED IN THIS AGREEMENT, IN NO EVENT WILL SCIENCE EXCHANGE’S, REQUESTER’S, OR THEIR REPRESENTATIVES’ AGGREGATE LIABILITY TO SERVICE PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PLATFORM, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF (A) $1,000,000 OR (B) THE AGGREGATE AMOUNT OF FEES ACTUALLY COLLECTED BY SCIENCE EXCHANGE FROM REQUESTER FOR THE SERVICES TO WHICH THE LIABILITY RELATES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF SUCH LIABILITY.

13. Indemnification.

Unless any Applicable Law precludes a Service Provider from doing so, Service Provider agrees to indemnify Science Exchange, Requester and their respective Representatives from and against any claims, liabilities, losses, costs, damages, judgments, penalties, fines, attorneys' fees, court costs and other legal expenses, insurance deductibles and all other expenses arising out of or relating to, directly or indirectly:

i) the negligent, grossly negligent, or intentional act or omission of Service Provider or its Representatives

ii) Service Provider's failure to perform any of its obligations under this Agreement or an Order.

14. Resolution of Disputes between Service Provider and Science Exchange.

If a dispute arises between Service Provider and Science Exchange, Parties agree that any claim or controversy at law or equity that arises out of or relates to this Agreement or an Order will be resolved in accordance with the terms of Section 15 of this Agreement. Before resorting to these alternatives, Service Provider agrees to first contact Science Exchange directly to seek dispute assistance via email at legal@scienceexchange.com.

15. Arbitration.

In the event that a dispute cannot be amicably resolved, each Party agrees to resolve any claim, dispute, or controversy between the Parties (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. The arbitration will be conducted in the County of Santa Clara, CA. Each Party will be responsible for paying any AAA filing, and administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent a Party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property, or unauthorized access to Science Exchange, Inc. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS THE PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. THE PARTIES AGREE THAT, BY ENTERING INTO THIS AGREEMENT, THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Notwithstanding the foregoing, if a Party is entering into this Agreement on behalf of a Government-Affiliated Entity (as defined below), and any Applicable Laws or governing policy restricts a Party from resolving Claims by binding arbitration as set forth above, then the Parties agree to submit their dispute to a mutually acceptable mediator to help them resolve their differences utilizing non-binding mediation. If after non-binding mediation occurs, the dispute is not resolved, the Parties are free to exercise all other legal and equitable right.

16. Term & Termination.

The Term of each Order shall be as stated in the applicable Order. Science Exchange or Requester may terminate an Order at any time (I) by giving at least ten (10) days’ prior written notice to Service Provider, or (II) immediately by giving written notice to Service Provider if termination is for safety or regulatory reasons, including but not limited to a request from the FDA or other regulatory authority or breach (or threatened breach) of the Confidentiality provisions. Upon the receipt of notice of termination of an Order from Science Exchange or Requester, Service Provider shall immediately cease performance of the Order, and comply with all reasonable requests and instructions of Science Exchange and Requester to wind down the Order in an orderly and safe manner while minimizing additional costs to Requester. Requester's sole obligation to Service Provider in the event of termination of an Order by Science Exchange or Requester shall be to pay any monies due and owing for Services properly performed and all reasonable expenses properly incurred in accordance with the applicable Order through the effective date of termination, provided that in the event of termination for default by Service Provider, Science Exchange shall not be obligated to make any further payments to Service Provider until Science Exchange and Requester have been fully compensated for damages suffered as a result of Service Provider’s default. Service Provider shall deliver to Requester within thirty (30) days from the effective date of termination all completed Deliverables, Work Product, work in process, materials, results, information, data, reports, tables, graphs, programs, or other documents pertaining to the Order, unless otherwise directed by Science Exchange or Requester in writing.

17. Governing Law.

This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws principles. Notwithstanding the foregoing, if a Party is entering this Agreement on behalf of a government-affiliated university, institute, organization, or other government-affiliated entity (a “Government-Affiliated Entity”), and any Applicable Laws or governing policy restricts such Party from entering agreements governed under the laws of the State of California, then the Parties agree that the laws of the defendant shall govern the interpretation of this Agreement. Any suit, action, or proceeding to enforce the provisions of this Agreement shall be brought in the courts of the defendant and each party hereby submits and consents to the exclusive personal jurisdiction of, and waives any objection to the laying of venue or claim of inconvenient forum in such court for the purpose of any such suit, action, or proceeding. For avoidance of doubt, nothing in this section 17 will preclude a party from taking immediate steps to seek urgent equitable relief before an appropriate court.

18. Anti-Bribery Laws.

Service Provider and anyone acting on their behalf shall not offer, make or promise any payment, either directly or indirectly, of money or other assets (“Payment”) to an official of any government, political party or international organization, or to any candidate for political office, or to any person acting on behalf of any of the foregoing (collectively, "Officials"), if such Payment is, or may be construed as being paid, for the purpose of influencing decisions or actions with respect to the subject matter of this Agreement or any other aspect of Science Exchange or Requester’s business, or would otherwise constitute a violation of any applicable Law.

19. Employment Law.

For any performance required under this Agreement (i) between two business entities based in the United States of America and (ii) being performed in the United States of America and/or its territories, Service Provider agrees that this Agreement shall be performed in compliance with the following, if applicable to Service Provider: the employee notice and related obligations found at 29 C.F.R. Part 471, Appendix A to Subpart A, Title VII of the Civil Rights Act of 1964; sections (1) and (3) of Executive Order No. 11625 relating to the promotion of Minority Business Enterprises; 41 CFR §§ 60-1.4(a); Americans with Disabilities Act; Age Discrimination in Employment Act; Fair Labor Standards Act; Family Medical Leave Act; and all corresponding implementing rules and regulations, all of which, including without limitation the contract clauses required and regulations promulgated thereunder, are incorporated herein by reference. Service Provider agrees to support the policy of not discriminating on the basis of age, sex, race, religion, color, national origin, physical or mental disability, or veteran status and abide by all laws, rules, and executive orders governing equal employment opportunity. Service Provider also agrees to make available to Science Exchange, upon reasonable request, proof of its efforts to comply with this Section.

20. Changes.

No amendment or modification of this Agreement or any Order will be effective unless it is in writing and approved by Science Exchange. Notwithstanding the foregoing, Science Exchange shall have the right to update this Agreement as it sees fit. To the extent possible Science Exchange will provide notice to Service Provider of the changes to this Agreement; notwithstanding the foregoing, Service Provider warrants that it will review the terms and conditions on each Order to ensure compliance.

21. Use of Name.

The Parties shall not use the name of any Party without express written consent from such Party.

22. Assignment.

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by a Party without prior written consent of the respective Party, except that Requester may assign its rights this Agreement, without the other Parties’ consent, to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, or the sale of all or substantially all of Requester’s assets. Any attempted transfer or assignment in violation hereof shall be null and void. The Parties acknowledge and agree that the Requester is hereby an express intended third-party beneficiary to the terms and conditions of this Agreement, with full rights to enforce the terms herein.

23. Independent Contractor.

Service Provider is an independent contractor. Nothing contained in this Agreement creates a partnership, joint venture, employer/employee, principal-and-agent, or any similar relationship between the Service Provider and Science Exchange or Requester. Service Provider has no authority to, and shall not, act as agent for or on behalf of Science Exchange or Requester or represent or bind it in any manner. Service Provider will not be entitled to any of the benefits afforded to Science Exchange or Requester employees.

24. Human Subject Consent.

To the extent that Service Provider is required to provide Requester with cells, tissue, blood or any other bodily fluids collected from human subjects as well as any derivatives thereof (“Human Substances”), Service Provider represents and warrants that to the extent any consent or authorization is required by Applicable Laws, or by applicable policy or other approval authority, to be obtained from an individual in connection with the collection, maintenance or transfer of the Human Substances, such informed consent or authorization was or will be obtained as required. Service Provider represents and warrants to Requester and Science Exchange that the provision of Human Substances and any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information (“PII”), to Requester for research purposes is consistent with any informed consent or authorization previously secured or to be secured. Accordingly, Service Provider represents and warrants that each individual from whom Requester shall receive Human Substances has signed a valid consent form, in compliance with all applicable laws and regulations. Such consent forms shall be provided to Requester and/or Science Exchange upon request. Furthermore, Service Provider represents and warrants that (a) it has the right to transfer the Human Substances; (b) there are no third party claims of ownership or other rights to the Human Substances; (c) the Human Substances were and/or will be collected, and have been and/or will be maintained in accordance with all applicable laws, including laws relating to the acquisition of informed consent or authorization, and in accordance with all applicable regulations; and (d) to the extent that the collection of such Human Substances was or will be funded in whole or in part with funds from a third party (e.g., a government agency, a commercial sponsor), the transfer of the Human Substances to Requester is not inconsistent with the terms of any agreement between the Service Provider and the third party.

25. Personally Identifiable Information.

Service Provider represents and warrants that it will not deliver to Requester or upload to the Science Exchange Platform any information or data about an individual including (I) any information that can be used to distinguish or trace an individual‘s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; and (II) any other PII.

26. Payments to Covered Recipients.

In the event that the Service Provider is a U.S. teaching hospital or a U.S. physician (“Covered Recipients”) or has a Covered Recipient contribute to or perform any of Service Provider’s obligations hereunder, payments made by or on behalf of Service Provider to each such Covered Recipient or other compensation or consideration received by each such Covered Recipient on account of its contributions to or performance of any of Service Provider's obligations hereunder shall represent fair market value and comply with applicable laws, rules and regulations. Additionally, Service Provider shall inform Science Exchange and Requester of any such payments to a Covered Recipient in order to comply with applicable laws such as the Physician Payments Act.

27. Gratuities.

Service Provider, on behalf of itself and its Representatives, represents and warrants that they (i) have not and will not offer or give to Requester or Science Exchange gifts, entertainment, payments, loans, or other gratuities in order to or that may influence the award of a contract or obtain favorable treatment under this Agreement with Science Exchange or Requester and (ii) have not and will not use federal funds to influence or attempt to influence any employee of the United States Federal government or a member of Congress in connection with this Agreement.

28. Export Control.

To comply with U.S. export control regulations, Requester may be required to obtain an export license prior to releasing certain technologies to non-US citizens depending on the person’s home country and resident status. Service Provider and its Representatives represents and warrants that it currently does not intend to use any person to perform Services under an Order who is a citizen of or has permanent residency in any country listed in Country Group E:1 (15 C.F.R. Part 740, Supplement No. 1) (and any amendments thereto or successor lists).

29. Information Technology Security.

Service Provider represents and warrants that it has an information security program that is based on industry standards applicable to its obligations hereunder such as (i) International Organization for Standardization ("ISO") / International Electrotechnical Commission ("IEC") ISO/IEC 2700X, (ii) American Institute of Certified Public Accountants (“AICPA”) Trust Services Principles, Criteria and Illustrations, (iii) Information Security Forum ("ISF") Standards of Good Practice ("SoGP") for Information Security, (iv) National Institute of Standards and Technology ("NIST") Special Publication 800-53 - Security and Privacy Controls for Federal Information Systems and Organizations, or (v) Information Systems Audit and Control Association ("ISACA") Control Objectives for Information and related Technology (COBIT). Science Exchange shall have the right to perform an audit of Service Provider’s IT security on an as needed basis.

30. Insurance.

Service Provider shall maintain adequate levels and types of insurance coverage appropriate to its business and profession to cover its indemnity obligations hereunder, as required by Applicable Laws, and consistent with the its performance hereunder with such coverage levels and types to include at a minimum and without limitation insurance required by Applicable Laws with respect to Service Provider’s status as an employer, workers’ compensation, comprehensive general liability, employer’s liability, and automobile liability. Service Provider’s insurance coverage must be primary coverage. All insurance coverage must be in full force and effect at all times during performance of Service Provider’s obligations hereunder. At Science Exchange’s request, Service Provider must submit to Science Exchange a certificate of insurance on the ACORD form evidencing the above coverages.

31. Force Majeure.

A Party shall not be deemed in default of this Agreement, nor shall it hold another Party responsible, for any cessation, interruption or delay in the performance of its obligations (excluding payment obligations) due to earthquake, flood, fire, storm, natural disaster, act of God, acts of government, war, terrorism, armed conflict, labor strike, lockout, boycott or other similar events beyond the reasonable control of the Party whose performance has been affected; provided, however, the affected Party shall provide prompt written notice to the other Party of such cessation, interruption or delay and shall use commercially reasonable efforts to avoid or remove such causes of non-performance and continue its performance whenever such causes are removed.

32. No Conflict.

Service Provider represents and warrants to Science Exchange that Service Provider is not, and covenants that it will not, and is responsible for ensuring its employees and Representatives do not become, a party to any agreement or arrangement which would constitute a conflict of interest or that would conflict with the terms of this Agreement, including, but not limited to with respect to ownership of Work Product, or would prevent such party from carrying out its obligations under this Agreement.

33. Waiver.

A Party's failure or neglect to enforce any of its rights under this Agreement or applicable Order will not be deemed to be a waiver of that Party's rights to enforce its rights under such Agreement or applicable Order.

34. Entire Agreement / Severability.

This Agreement, together with any amendments and any additional agreements a Party may enter into with a Party in connection with Science Exchange Inc., shall constitute the entire agreement between the Parties. If a court of competent jurisdiction deems any provision or portion of this Agreement to be invalid, the invalidity of such provision shall not affect the validity of the remaining portion of such provision and any other provisions of this Agreement, which shall remain in full force and effect.

35. Survival.

The provisions of this Agreement which expressly or by their nature survive expiration or termination of this Agreement, including, but not limited to, Sections 1-3, 5-21, and 24-30, will remain in effect after the expiration or termination of this Agreement or applicable Order.