Terms and Conditions for Customer Compound Profiling Data Services

1. Contract Terms. These are the contract terms and conditions ("Terms") under which Promega Corporation("Promega"), directly or through Promega's authorized distributor or affiliate, sells customer compound profilingdata services ("Services") to a person or entity ("Customer"). Additional written contract terms that apply to thissale ("Additional Terms") may be found in a quotation to Customer. In the event of a conflict between the Terms and any Additional Terms, the Additional Terms will control. These Terms, together with our quotation, and any Additional Terms therein, create the contract ("Contract") between Promega and Customer for the purchase and sale of the Services. No quotation given by Promega shall constitute an offer to supply the Services. An order placed by Customer, whether or not in response to a quotation, shall constitute an offer made to Promega subject to these Terms and any Additional Terms. No terms or conditions put forward by Customer or implied by Customer, in an order, purchase order, invoice, correspondence or elsewhere, shall be binding on Promega and such conditions or stipulations are hereby excluded and extinguished. Promega's failure to object to any such terms shall not constitute a waiver by Promega and shall not constitute acceptance by Promega of such terms and conditions. The Contract cannot be amended or modified unless agreed to in writing by both parties. All Contracts for Services are subject to availability. Any error or omission in any quotation, catalog, sales literature, invoice, report, data report, Deliverable, or other document issued by Promega shall be subject to correction by Promega without liability to Promega.
2. Performance of Services. The Services shall entail Promega running its assay technology using Customer-supplied materials (“Customer Materials”) to generate data about the Customer Materials in the form of a written report or spreadsheet (“Deliverable”). Promega shall perform the Services as an independent contractor, using methods, analysis protocols, materials, equipment (including features and operation of such equipment) and/or related intellectual property owned or controlled by Promega or its affiliates (in each case and collectively, “Promega Technology”). Promega will make a good faith effort to start and complete all Services in a timely manner, and will notify Customer if substantial delays are likely. Promega will comply with all laws and regulations generally applicable to the Services. Promega may delegate performance of the Services, or any portion thereof, to an affiliate or subcontractor, provided that all Services will be performed in accordance with the Contract.
3. Customer Materials and Data. Customer shall provide Promega with the Customer Materials in amount sufficient to perform the Services, as well as relevant safety information and other characteristics of such Customer Materials needed by Promega to perform the Services. All information about Customer Materials, whether provided by Customer or generated by Promega in the performance of the Services, is collectively referred to herein as “Data.” Upon completion of the Services, Promega will maintain records of the Data for a period of no less than one (1) year. Promega will use Customer Materials and Data only in accordance with theServices, and will not modify or reverse engineer Customer Materials except as directed by Customer. Customer hereby represents and warrants to Promega that, to its knowledge, none of the Customer Materials or their use in the Services, (a) infringe upon, or will infringe upon, the patent, copyright or trademark of any third party; (b) misappropriate or will misappropriate the trade secret of any third party; or (c) otherwise violate, or will violate, the intellectual property rights of any third party.
4. Deliverable. Nothing in these Terms shall preclude Customer’s use of the Deliverable or Data in its research and development of commercial products or services.
5. Payments. Customer shall pay Promega for the Services and Deliverable within thirty (30) days after the date of the respective original invoice(s), which shall be sent to Customer upon completion of the Services (or portion thereof) or delivery of any Deliverable. If Customer defaults on any payment when due, Promega, at its option and without prejudice to its other lawful remedies, may delay performance, defer delivery, charge interest on amounts owed, up to the maximum allowable amount under applicable law, and/or terminate the Services.
6. Ownership and Intellectual Property. Customer shall be the exclusive owner of (i) the Deliverable, (ii) the Data; (iii) Customer Materials; (iv) any derivatives or modifications of (i) - (iii) that are generated by Promega as a direct result of the Services; and (iv) any inventions and discoveries that directly result from the performance of the Services and that directly relate to the Customer Materials or Data, whether or not copyrightable or patentable (collectively, the “Customer Inventions”). At Customer’s request and expense, Promega shall do all things reasonably necessary to assist Customer in obtaining patents or copyrights on any Customer Inventions. Customer Inventions shall not include Promega Technology or any improvements thereon or modifications thereof, whether developed before, during or after the performance of the Services (“Promega Inventions”). Promega retains all rights title and ownership in the Promega Inventions. Customer shall not, by virtue of the Services, obtain any license or other rights in any Promega Technology. Promega’s laboratory notebooks and other records maintained with respect to the Services shall be owned by Promega, provided however that to the extent such notebooks or records contain any Data or confidential information of Customer, such Data and confidential information will continue to be the property of Customer, and those portions of such notebooks and records containing Customer confidential information will be subject to Promega’s obligations of nonuse and confidentiality as set forth in Section 10 below.
7. Limited Warranty; Limitation of Liability. Promega warrants that the Services will be performed using due care in accordance with (a) these Terms, and (b) applicable laws, regulations and generally prevailing industry standards applicable to such Services. Promega does not warrant or represent that the results of the Services will be acceptable to any regulatory agency to which they are presented or that they will advance the interests of Customer. Promega does not warrant or represent that the Services will be performed under Good Laboratory Practices (“GLP”). If Customer believes that Promega, in breach of its limited warranty, has made a material error in the Services that renders the results of such Services invalid, Customer must notify Promega of such error in writing, within fifteen (15) business days after receipt of the Deliverable for such Services; and as Customer’s sole remedy for such error, Promega shall, at its sole option, either (i) repeat the particular Services at Promega’s own expense or (ii) refund to Customer the fees actually paid for the particular Services giving rise to the breach of warranty. THE WARRANTY SET FORTH IN THIS SECTION 7 IS IN LIEU OF ANY AND ALL OTHER WARRANTIES BY PROMEGA RELATING TO THE SERVICES OR THE DELIVERABLE, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY THAT THE DELIVERABLE OR SERVICES, OR THE USE THEREOF, WILL NOT INFRINGE ANY THIRD-PARTY INTELLECTUAL PROPERTY. PROMEGA SHALL NOT BE LIABLE HEREUNDER, UNDER ANY LEGAL THEORY, FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF PROMEGA HAD NOTICE OF THE POSSIBILITY THEREOF. NOT WITHSTANDING ANY OTHER PROVISION OF THESE TERMS, IN NO EVENT SHALL PROMEGA’S LIABILITY TO CUSTOMER FOR BREACH OF ANY PROVISION OF THE CONTRACT EXCEED THE AGGREGATE AMOUNT TO BE PAID FOR THE SERVICES TO BE PERFORMED OR THE DELIVERABLE TO BE DELIVERED HEREUNDER.
8. Inspection. Customer shall be responsible for inspection of the Deliverable within fifteen (15) business days of delivery thereof to Customer and shall notify Promega of any non-conforming Deliverable within such 15-day period, after which period Customer shall be deemed to have accepted such Deliverable. In no event shall Promega be liable for any damages or other liability arising directly or indirectly from Customer’s use of or reliance on any Data or Deliverable delivered hereunder once the same have been deemed accepted by Customer in accordance with the immediately preceding sentence, other than as a result of a breach of the limited warranty set forth in Section 7 above.
9. Non-Exclusivity. All Work is provided on a non-exclusive basis, and Promega reserves all rights for itself and its affiliates to provide third parties with the Services, provided that Promega shall not use any Customer Materials or Data to perform such Services for any third party. Not withstanding anything else in these Terms, where Promega performs the Services without reliance on Customer Materials or Data, Promega reserves all rights to commercialize such work.
10. Confidentiality. Promega shall treat all Customer Materials as proprietary and confidential to Customer, and will not disclose such Customer Materials to any person except Promega’s employees, consultants and subcontractors to the extent necessary for purposes of providing the Services. If Promega discloses any confidential information or materials related to Promega Technology or Promega luciferase material to Customer, Customer shall treat such information and materials as proprietary and confidential to Promega. Each party shall protect the proprietary and confidential information or materials of the other party by using the same degree of care as such party uses to protect its own materials and information, but in any event no less than a reasonable degree of care; provided, that, not withstanding any other provisions herein, each recipient party shall have no obligation to the other party under this Section 10 for any information or material that is (a) already known to the recipient party prior to its disclosure or provision by the disclosing party; (b) publicly known other than by a wrongful act of the recipient party; (c) received from a third party lawfully entitled to disclose it; or (d) independently developed by or for the recipient party without the use of the other party’s proprietary or confidential information. The foregoing restrictions of this Section 10 shall not apply to disclosures by one party of any confidential or proprietary information of the other party that are made pursuant to an enforceable order of a court or administrative agency, provided that the disclosing party shall notify the other party reasonably promptly of such disclosure prior thereto (to the extent practicable). All confidential information shall remain subject to the terms of this Section 10 for a period of three (3) years after the disclosure; provided that if any information included in the confidential information constitutes a “trade secret” the terms of this Section 10 shall continue to apply to such information for as long as it remains a trade secret.
11. Indemnification.
    1. Customer shall indemnify, defend and hold harmless Promega and its affiliates, and their directors, officers, agents, employees, representatives and assigns, from and against all claims, causes of action, proceedings, judgments, settlements, awards, liability, losses and damages (including, without limitation, reasonable attorneys’ fees, proceedings costs, costs of investigation and expenses) (collectively, “Claims”), that any of them shall suffer or for which any of them shall become liable, arising from or related to (i) the grossly negligent or intentional actions of Customer, its employees or agents in the performance of this Contract; (ii) Customer’s material breach of any representation or warranty set forth in this Contract; and (iii) any actual or alleged act of patent infringement, contributory patent infringement, inducing patent infringement, copyright infringement or any other infringement or misappropriation claim of a third party intellectual property right, arising out of the Customer Materials or Customer’s use of the Data or Deliverables, except, in any such case, to the extent such Claims are the direct result of Promega’s breach of this Agreement, negligence or willful misconduct.
    2. Promega shall indemnify, defend, and hold harmless Customer and its affiliates, and their directors, officers, agents, employees, representatives and assigns, from and against all Claims that any of them shall suffer or for which any of them shall become liable, arising from or related to (i) the grossly negligent or intentional actions of Promega, its employees or agents in the performance of this Contract; (ii) Promega’s material breach of any representation or warranty set forth in this Contract; and (iii) any actual or alleged act of patent infringement, contributory patent infringement, inducing patent infringement, copyright infringement or any other infringement or misappropriation claim of a third party intellectual property right, arising out of Promega’s use of Promega Technology in the Services, except, in any such case, to the extent such Claims are the direct result of Customer’s breach of this Contract, negligence or willful misconduct.
    3. The indemnified party hereunder (“Indemnitee”) shall give the indemnifying party hereunder (“Indemnitee”) written notice of the relevant claim and the related facts with reasonable promptness after becoming aware of the same. Indemnitor, at the sole expense of the Indemnitor, may assume the primary defense thereof with counsel reasonably acceptable to Indemnitee, but only if and so long as (i) Indemnitor diligently pursues the defense of such claim, and (ii) Indemnitor acknowledges to Indemnitee in writing that the claim, if resolved or settled adversely to Indemnitee, is one for which Indemnitor is obligated to indemnify Indemnitee hereunder. If Indemnitor so assumes the primary defense of any such third-party claim, Indemnitee, at its own expense, shall have the right to participate in such defense through counsel of its own choosing. If Indemnitor fails or is unable to assume the primary defense of any such claim, Indemnitee may (but need not) do so, in which event Indemnitee may defend, settle or compromise the claim, at the expense and cost of Indemnitor, in any such manner as Indemnitee reasonably deems appropriate.
12. Termination. Either party may terminate this Contract upon thirty (30) days’ prior written notice to the other party. If the Contract and Services are terminated by Customer before all Deliverables are completed, Customer shall be responsible for the value of all Services completed up to the date of termination.
13. Survival. The provisions of this Contract that by their nature continue beyond the termination of this Contract will survive such termination, including the provisions of this Contract relating to ownership, intellectual property, license and use limitations, representations and warranties, disclaimers, limitations of liability, indemnification, and governing law.
14. General Terms. This Contract may not be assigned by either party without the prior written consent of the other party, whether by operation of law or otherwise. This Contract shall be governed by the laws of the state of Wisconsin, without regard to the conflict of laws provisions thereof. If any part of this Contract is found to be legally unenforceable, the remainder of the Contract shall not be affected thereby. Except for payment obligations, neither party shall be responsible for failure to perform its obligations due to natural disasters or other force majeure causes beyond its reasonable control. Customer understands that Promega purchases or manufactures certain materials that are key to the Services. Should any such material become unavailable due to the inability of Promega to obtain or manufacture said materials, despite Promega’s commercially reasonable efforts to do so, Promega’s inability to perform hereunder due to such unavailability shall not constitute a breach hereof, and Customer shall hold Promega harmless for any loss or damages that Customer may incur as a direct or indirect result of such unavailability of materials, even if Promega has been made aware of the potential for such losses or damages. Promega reserves the right, in its sole discretion and without liability, to allocate supply of the materials used in the Service. No waiver by either party of any breach hereof shall constitute a waiver of any other breach hereof.

Updated February 22, 2022